Shutz v. Western Wholesale Liquor Distributors

California Court of Appeal Feb 1, 1938 No. Civ. 2104Published

Before: Barnard

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Holding. The court held that the trial court did not abuse its discretion in dismissing proceedings for the preparation of a reporter's transcript due to the appellant's lack of due diligence and failure to demonstrate that the transcript would be of benefit to his appeal.

Issues

Did the trial court abuse its discretion in terminating proceedings for the preparation of a reporter's transcript due to a lack of due diligence?
Was the appellant required to show that the desired transcript would be of benefit to the questions he sought to have reviewed on appeal?

Disposition. affirmed

Quotations verified verbatim against the opinion

“the matter is necessarily one which is largely within the discretion of the trial court and that unless an abuse of that discretion clearly appears from the record the order of the court will not be reversed on appeal.”

“In our opinion it cannot be said, upon the record before us, that an abuse of discretion appears.”

“it was not possible to hold that the trial court had abused its discretion in the absence of any showing that the desired transcript would be of benefit to the party seeking relief.”

BARNARD, P. J.

This is an appeal from an order dismissing and terminating the proceedings for the preparation and settlement of the reporter’s transcript in connection with a prior appeal in the same action.

The plaintiff, while riding as a guest in an automobile driven by one Tarshish was injured in a collision between

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that car and one owned and operated by the defendants. The plaintiff brought this action for damages which was tried before a jury in March, 1935, resulting in a verdict and judgment in favor of the defendants. A motion for a new trial was denied and notice thereof served on the plaintiff on May 9, 1935. On May 22, 1935, the plaintiff served and filed a notice of appeal from the judgment together with a notice and request for the preparation of a clerk’s and reporter ’s transcript. By stipulation the time for the preparation and filing of these transcripts was extended to September 1, 1935.

On July 25, 1936, the plaintiff requested the court reporter to prepare a reporter’s transcript in this action. On August 7, 1936, a clerk’s transcript was filed in the trial court and delivered to the clerk of this court on September 12, 1936. On August 17, 1936, a reporter’s transcript, duly certified by the court reporter, was filed in the trial court. On August 19, 1936, the defendants served and filed objections to the certification of the reporter’s transcript on the ground that the time for the preparation and filing thereof had expired on September 1, 1935, and that the plaintiff had not used due diligence in causing the same to be prepared. On the same day the defendants served and filed a notice of motion to terminate and dismiss the proceedings for the preparation of a reporter’s transcript. The matter was heard on affidavits, those for the defendants setting forth the material facts above referred to with the further statement that the time for the preparation of a transcript had not been extended beyond September, 1935, and those for the plaintiff setting forth in great detail facts tending to show that the plaintiff had been, throughout the period of the delay, without funds, that on many occasions during the fall and winter of 1935, and the spring and summer of 1936, he had unsuccessfully attempted to borrow from numerous persons funds with which to prepare said transcripts, that near the end of July, 1936, he had secured from a named individual funds for this purpose and had had the transcripts prepared, and that in March, 1936, Tarshish secured a judgment in a separate action, tried before a different judge and without a jury, which was paid by these defendants. After a hearing the court granted the motion to terminate and dismiss the proceedings for the preparation of a record on the ground that

Shutz v. Western Wholesale Liquor Distributors

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BARNARD, P. J.

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