Caldwell v. Harvey

ADAMS, P. J.

This is a motion filed in this court on December 8, 1947, to dismiss an appeal from a judgment which had been entered March 18, 1947. The motion was supported by a certificate of the clerk of the lower court dated December 3, 1947, which conformed to rule 42 of the Rules on Appeal, and recited the nature of the action, the names of the attorneys of record, a description of the judgment and the date of its entry, a statement that no motion for a new trial was made, that notice of appeal to the Supreme Court was filed on March 19, .1947, and amended notice of appeal to this court dated March 27, 1947; that on said March 27th, defendant’s attorneys filed with affiant as clerk of the lower court a request for clerk’s and reporter’s transcripts; that no steps were taken to prepare an agreed statement; that no order extending time for preparation of the record was filed and no record of transcript had been certified by the lower court, and no proceeding for the certification of a record on appeal was pending in the said superior court, and that no transcript had been filed.

The notice of motion was served on appellant’s counsel on December 3, 1947, and said motion was set for hearing in this

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court ou February 5, 1948. No written opposition to said motion was filed by appellant and no written motion to be relieved of default was made by him; but on said February 5, 1948, counsel for appellant appeared and argued in opposition to respondent’s motion.

In the meantime and on January 27, 1948, appellant had filed in this court the clerk’s and reporter’s transcripts on appeal, together with an affidavit of Lee Johnston, court reporter, verified on December 16, 1947. The clerk’s transcript was certified on December 30, 1947, and the reporter’s transcript, as corrected, was certified by the trial judge on January 9, 1948. It was averred in the reporter’s affidavit that affiant had reported the proceedings on the trial of this action, that judgment was entered March 19, 1947, and notice of appeal to this court filed on March 28, 1947; that on the latter date appellant filed a request for clerk’s and reporter’s transcripts, and his counsel requested an estimate of the cost of preparation of reporter’s transcript, which estimated cost was promptly given and said attorney forthwith paid the entire estimated cost and requested affiant to proceed as soon as possible with the preparation of such transcript. He further averred that “as soon as possible thereafter” he commenced preparation of the reporter’s transcript, and whenever time and opportunity had afforded had diligently worked upon the said reporter’s transcript; that since the request for same was made he had been in almost daily attendance upon court sessions, many of which were criminal trials; that the attorney for appellant had frequently asked him concerning the progress of the preparation of such transcript, and affiant had told him that he was preparing same as rapidly as possible; and that same was then (December 16, 1947) completed and ready to be filed. No extension of time to prepare said transcript was ever asked of this court by said reporter; and, as aforesaid, the record was not filed until the 27th day of January, 1948.