EDMONDS, J. Following the conviction and sentence of A. A. Sekt in the Justice’s Court of San Rafael, he filed a [74]written, notice of appeal. Upon motion, the superior court dismissed the appeal upon the ground that it had not been perfected within the time required by the rules of the Judicial Council. The question for decision, presented by the petition of Sekt for a writ of mandate requiring the superior court to hear and determine the appeal, concerns the authority of that court to make the challenged order.
The petitioner filed his notice of appeal on March 30th. On the same day he was granted until April 19th within which to prepare and file a statement and the transcript on appeal. The twenty days fixed by this order is the maximum time which may be allowed by the justice’s court for the preparation of the record upon appeal. (Rules of the Judicial Council in the matter of Criminal Appeals to the Superior Court from Inferior Courts; rules 4 and 6.) On April 24th, five days late, the petitioner filed his statement upon appeal specifying the ground, among others, that the evidence is insufficient to support either the verdict or the judgment. The statement declares that the insufficiency of the evidence is disclosed by the transcript of the evidence and proceedings had at the trial which “has been filed in said cause and said transcript by this reference is included in and made a part of this statement on appeal. ’ ’
It appears from the stipulation of the District Attorney of Marin County and counsel for Sekt, upon which the superior court determined the motion to dismiss, that at the time the statement on appeal was filed the reporter’s transcript had not been prepared. Because of the delay in filing the transcript, on May 14th the district attorney moved the justice’s court to terminate all proceedings upon the appeal and to carry the judgment into effect. The motion was denied. Other facts shown by the stipulation are that, on May 24th, the transcript prepared by them was filed in the superior court. Four days later, counsel for Sekt served a notice stating that on May 24th the transcript had been filed in the justice’s court.
It was on May 27th that the district attorney served and filed in the superior court a notice of motion to dismiss the appeal. Later he served an amended notice of his intention to make such a motion upon the ground that Sekt had failed to file his statement upon appeal or a transcript of the evidence and proceedings as required by law. The motion, based [75]upon the notice as amended, was heard and determined on June 18th. The parties’ stipulation recites that the transcript remained on file in the superior court until shortly prior to the date of the hearing when it was withdrawn and filed with the justice’s court. So far as the record shows, neither the statement nor the transcript has been settled.
The petitioner contends that the rules of the Judicial Council are not jurisdictional and a failure to comply with them does not deprive the superior court of jurisdiction to hear an appeal from an inferior court upon the merits where noneompliance is excusable. He urges that he has done all in his power to perfect the appeal and should not be penalized for delay based upon orders of the justice’s court extending time occasioned by the irregular extensions of time granted by the justice’s court to its official reporter. It is the duty of the trial court, he concludes, to determine whether delay justifies a termination of the proceedings to procure a record, and in the present case that question has been determined favorably to the petitioner.
In support of its order, the respondent court asserts that because of the petitioner’s failure to file the statement on appeal and the transcript within the time provided by the rules of the Judicial Council it has no jurisdiction to entertain the appeal. But if compliance with the rules of the Judicial Council is not jurisdictional, it adds, the order granting the motion to dismiss was made in the exercise of its discretion to dismiss an appeal not prosecuted diligently or regularly, as authorized by rule 10, and that there was no abuse of discretion.
Rule 4 of the rules of the Judicial Council regulating appeals to the superior court in criminal cases, requires that the statement and transcript upon appeal must be served upon the respondent and filed with the trial court within five days after the filing of the notice of appeal. But by rule 6, the court from which the appeal is taken may extend the time for filing the statement and transcript to a maximum of twenty days from the date upon which the notice of appeal was filed. “As soon as the statement or transcript on appeal has been settled and certified,” the rules further provide, “the clerk of the trial court or the judge thereof, if there be no clerk, shall forthwith transmit the record on appeal to [76]the clerk of the Superior Court to which the appeal is taken, together with all exhibits or other documents properly referred to and identified in the statement or transcript.” (Rule 3, § 9.) In the present case the transcript was not filed with the trial court within the time specified by these provisions, nor even within the time as extended by the order made in violation of rule 6. But that court denied the People’s motion to terminate the proceedings upon appeal; whether it has settled either the statement or transcript does not appear. At the time the motion to dismiss the appeal was noticed, and. also when it was heard and determined by the respondent court, the transcript had not been transmitted as required by rule 3.
The rules of the Judicial Council authorize the dismissal of an appeal under these circumstances: “If the appeal is not brought to a hearing within the time limited, or the appellant otherwise fails to prosecute it with diligence, or if the appeal is irregular in any substantial respect, the Superior Court may, on motion of the respondent or on its own motion, after written notice to the appellant, order it dismissed.” (Rule 10.) But the singular situation here shown is that although, according to the return of the superior court, at the time the motion to dismiss the appeal was heard and determined there was pending before it the appeal taken by Sekt, the record upon appeal had not been settled and the trial court had denied a motion to terminate the proceedings for obtaining it.
The rules regulating appeals from the superior court which were superseded by the Rules on Appeal, effective July 1, 1943, authorized the dismissal of an appeal upon the failure to file the record within the specified time. But under the former procedure, a motion of the respondent must have been based upon a certificate or affidavit “that no proceeding for a bill of exceptions or transcript under section 953a is pending in the trial court, and if no such proceeding was ever instituted that the time to institute the same has expired.” (Rule VI, Rules for Supreme Court and District Courts of Appeal.) The theory underlying this practice and the rules of court which have been in effect from time to time is that ordinarily whether the appellant has taken action to perfect his appeal within due time is not a question for investigation and consideration in this court on a motion [77]to dismiss the appeal. Such matters, it has been pointed out, may more properly be determined in the superior court. (Mill Valley v. Massachusetts etc. Co., 189 Cal. 52 [207 P. 253].) Accordingly, an order of the superior court denying a motion to terminate proceedings to procure a record is usually upheld. (Smith v. Jaccard, 20 Cal.App. 280 [128 P. 1023, 1026].) “The question of whether due diligence has been exercised is one that necessarily rests largely in the discretion of the trial court and its determination of this question will not be disturbed unless it plainly appears that such discretion has been abused.” (Wood v. Peterson Farms Co., 131 Cal.App. 312, 315 [21 P.2d 468].)
These principles are applicable to the facts which were presented to the superior court upon the motion to dismiss. True, it appears that there had been a long delay, occasioned by Sekt’s neglect in requesting the preparation of the transcript and his difficulties in connection with the fees of the reporters. But his inattention had been excused by the trial court. Moreover, the trial court’s failure to settle the statement and transcript and to transmit the record to the superior court, so far as appears in the present proceeding, is not chargeable to the appellant. The motion to dismiss the appeal should, therefore, have been denied.
Nevertheless, it is obvious that a peremptory writ of mandate requiring the superior court to hear and determine the appeal”should not issue when neither the statement nor the transcript has been settled by the justice’s court and it is conceivable that the record on appeal may never be transmitted to the superior court. On the other hand, the challenged order effectively bars any consideration of the appeal if, as and when the record is transmitted by the trial court. The petitioner has therefore stated facts entitling him to an annulment of the order dismissing the appeal (Fortenbury v. Superior Court, 16 Cal.2d 405 [106 P.2d 411]; Rodman v. Superior Court, 13 Cal.2d 262 [89 P.2d 109]). For although a petitioner demands an inappropriate prerogative writ, the court should grant such relief as is warranted by the facts shown. (Tan Tiger v. Superior Court, 1 Cal.2d 377, 384 [60 P.2d 851]; Traffic Truck Sales Co. v. Justice’s Court, 192 Cal. 377, 381 [220 P. 306]; Tan Hoosear v. Railroad Commission, 189 Cal. 228, 236 [207 P. 903].)
[78]The alternative writ of mandate is discharged; the order dismissing the appeal is annulled.
Curtis, J., and Carter, J., concurred.