Cobb v. Estate of Cobb

THE COURT.

This is a motion by respondents to dismiss an appeal which is taken from the verdict of the jury and the judgment rendered thereon. The motion is grounded on the claim that the transcript of record has not been filed and served within the time prescribed by law; that proceedings for a bill of exceptions had been dismissed by the trial court, and that no proceedings fon bill of exceptions or transcript under section 953a of the Code of Civil Procedure are pending in the trial court. This motion is based on the certificate of the clerk of the trial court dated November 14, 1941, and filed in this court on November 18, 1941. This certificate contains the following averments:

(1) Notice of appeal was served and filed on March 24, 1941, by appellant, but the same does not state the court to which the appeal is taken; (2) no notice to the clerk to prepare a transcript under 953a of the Code of Civil Procedure has been filed; (3) motion for new trial was served on respondents on March 24, 1941, and filed the following day (this motion was denied on April 14, 1941, and minute entry of such denial entered April 16, 1941); (4) notice of order denying motion for new trial was filed July 31, 1941, and served on appellant by mail on July 29, 1941; (5) no clerk’s transcript under section 953a of the Code of Civil Procedure has been filed; a reporter’s transcript covering testimony taken March 18 and 19, 1941, was filed on September 15, 1941, and on September 22, 1941, a reporter’s transcript on motion to settle bill of exceptions was filed; and (6) a proposed bill of exceptions was filed October 20, 1941, and a motion to strike the same was granted on the same day.

From the foregoing it is evident that no effort has been made on the part of appellant to perfect an appeal in accordance with the alternative method set forth in section 953a of

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the Code of Civil Procedure, because no request for a transcript was filed within the ten days allotted, and no transcript was filed within twenty days thereafter, nor at any time, and appellant’s time to take an appeal by this method has since expired.

It is at once apparent that appellant has attempted to present his appeal on a bill of exceptions. However, the court, after giving appellant time to amend his bill, which he refused to do, granted a motion to strike the proposed bill from the files on October 20, 1941. On November 25, 1941, this court dismissed appellant’s petition to settle a bill of exceptions under section 652 of the Code of Civil Procedure.