Peak v. Nicholson

California Court of Appeal Nov 16, 1943 No. Civ. 12432Published

Before: Nourse

AI Brief

AI-generated · verify before citing

Holding. The court denied the motion to dismiss the appeal, finding that the appellant's typewritten transcript was a sufficient record under the applicable rules and that the court had discretion to grant relief from default regarding the late filing of the opening brief.

Issues

Whether a typewritten clerk's transcript was a sufficient record on appeal under the rules existing prior to July 1, 1943.
Whether the court may grant relief from default for the late filing of an opening brief under the new Rules on Appeal.

Disposition. denied

Quotations verified verbatim against the opinion

“where a notice of appeal was duly given and a typewritten clerk’s transcript was duly filed, it was a sufficient record on appeal, under the old rules, for the review of the rulings appearing therein”

“The reviewing court for good cause may relieve a party from a default occasioned by any failure to comply with the new rules, except the failure to give timely notice of appeal.”

“It is the accepted policy of the courts to encourage hearings of appeals on their merits and a dismissal on technical grounds is not favored”

NOURSE, P. J.

The respondents have moved to dismiss the appeal upon two grounds—the failure to serve upon them a copy of the transcript, and the delay in filing the opening brief.

The action is one for damages against a number of defendants. The demurrer of those defendants who are the moving parties here was sustained and a judgment of dismissal was entered as to them on February 9, 1942. No notice of entry of judgment appears in the record. On March 12, 1942, appellant gave notice of appeal from this judgment. A typewritten transcript was prepared and certified by the county clerk and filed with the clerk of the District Court of Appeal of the Third District on June 9, 1942. No service of this transcript was made upon respondents. Extensions of time were given by that court for filing appellant’s opening brief; the case was transferred to this court for hearing and decision, and further extensions were given here until July 19, 1943, when further extension was denied. On August 4, 1943, the opening brief was filed, and on August 12th these respondents filed their notice to dismiss the appeal upon the two grounds stated.

The first question must be determined from an examination of the rules of court existing prior to July 1, 1943, since the Rules on Appeal effective on that date are made applicable to pending appeals “after the filing of the record in the reviewing court.” Rule 53(b). In the Draftsman’s Notes attached to the new rules (Annotated Rules on Appeal,

[357]

published by California State Printing Office, 1943) it is correctly stated that this provision means that they shall apply to and govern the “subsequent proceedings” such as briefs, oral argument, dismissals and hearings.

Here the record on appeal was completed with the filing of the transcript on June 9, 1942. At that time neither the statute nor the rules required that the transcript be printed. The appellant has followed the same steps as those outlined in

Miller

Price,

203 Cal. 772 [265 P. 931]. The notice of appeal was not tied into section 953a of the Code of Civil Procedure, but a clerk’s transcript, consisting of the judgment roll, and duly certified, was filed as the “record” on appeal. The Supreme Court held that this was sufficient for the review of all rulings which appear thereon, and that the record will be deemed a sufficient compliance with section 950 of the same code. In

Peak v. Nicholson

AI Brief

NOURSE, P. J.

More from California Court of Appeal

Related research

AI Brief