Smith v. Title Insurance & Trust Co.

CONREY, P. J.

Respondents on February 9, 1925, served and filed notice of motion to dismiss the appeal “upon the ground that neither the transcript on appeal nor appellant’s opening brief” were served or filed within the time prescribed by law and the rules of the court. The appeal is from a judgment entered after the court had sustained a demurrer to the third amended complaint, in an action to recover on a money demand against a decedent’s estate. As it appeared from the clerk’s certificate that the appeal should have been made to the supreme court, the same was transferred to the supreme court; whereupon the supreme court made its order retransferring the cause to this court. Thereafter the motion to dismiss was brought on for hear

[140]

ing and was submitted on March 13. As the time for filing brief does not begin to run until the transcript has been filed, the only delay which we need to consider is the delay in filing the transcript.

Notice of appeal from the judgment was filed in the superior court on the twenty-seventh day of September, 1924. Therefore the time for filing transcript expired on November 6, 1924.

The motion is based upon the certificate of the county clerk and upon an affidavit of Elias V. Rosenkranz, attorney for respondent. In this affidavit it was stated that appellant served on defendants his transcript on appeal on December 12, 1924, and deposited said transcript with the clerk of this court on the seventeenth day of January, 1925, but down to and including February 9, 1925, had not paid the filing fee therefor, and the transcript remained unfiled; that as early as the eighth day of December, 1924, affiant had informed the attorney for appellant that he would move to dismiss the appeal “unless the transcript as corrected is served upon me within the next few days”; that on the thirtieth day of January, affiant addressed a letter to plaintiff’s attorney stating that unless the opening brief was served and filed within the next week, he would make a motion to dismiss the appeal.

Affidavits in opposition to the motion were made by Augustus Tilden, one of the attorneys for appellant, and by R. M. Ferguson. Tilden stated that “seasonably after the perfecting of the appeal” he made an agreement with a printing company which agreed to print and file the transcript in due time; that it had in its employ a Mr. Ferguson who claimed to be qualified to superintend the printing and filing of the transcript according to the rules, and affiant relied upon him so to do; that on the day when the filing was due, Mr. Ferguson reported to affiant that the transcript was not ready for filing; that affiant instructed Ferguson to procure an extension from Rosenkranz; that later on the same day Ferguson reported to affiant that Rosenkranz had granted such extension on certain conditions as to the contents of the transcript; that affiant agreed to these conditions which increased the size of the transcript by about eighty-three pages; that the extension granted was not in writing and not definite as to time; that pending