W. J. Somers Co. v. Smith

THE COURT.

The respondent moved to dismiss the appeal from a judgment entered against the appellant and also to dismiss a second appeal from an order denying the appellant’s motion for an order to set aside a prior order by which settlement of the appellant’s proposed transcript of the record on the appeal from the judgment was denied.

[1]

Logically the second motion should be first determined. Voluminous affidavits have been filed in connection with the motion to dismiss the second appeal, upon which the respondent, in effect, seeks to have determined on this motion the merits of the appeal from the order rather than the right of the appellant to prosecute the appeal. On such a motion the court will not consider the controverted questions of fact.

(Harper

v.

Hildreth,

99

[705]

Cal. 265, [33 Pac. 1103];

Woodbury

v.

Nevada etc. Ry. Co.,

120 Cal. 367, [52 Pac. 650];

Coonan

v.

Loewenthal,

122 Cal. 72, [54 Pac. 388].)

[2]

The appellant sought to have the record on appeal made up under the alternative method, and there was delay on the part of the court reporter in the preparation of the record. The record was finally presented to the court for settlement, which was resisted by the respondent, and the trial court refused to settle and approve the record. The appellant contended that he had done everything required of him under the statute and the rules of court, and that the delay in filing the record was the fault of the official reporter. If the condition of the record was such that it should have been certified by the trial judge, the. statute gave the appellant no right of appeal from the order refusing to approve the record. The appellant’s only remedy in that event would have been by