Wood v. Peterson Farms Co.

JENNINGS, J.

This is an appeal by the defendant, Cora Van Aernam Peters, from an order of the trial court terminating proceedings for the preparation of a transcript on appeal undertaken to be prepared' in accordance with the provisions of section 953a of the Code of Civil Procedure, and from an order of the court denying the said defendant’s motion to be relieved from the default of the clerk and of said defendant in failing to file the reporter’s transcript of the evidence produced upon the trial of the action within the time prescribed by law.

The following facts pertinent to this appeal are presented by the record herein: Judgment in favor of plaintiff was rendered on December 27, 1930. Notice of entry of judgment was given on January 2, 1931. On the latter date the aforesaid defendant gave notice of appeal from the judgment and on this same date there was filed in her behalf a notice directed to the clerk to prepare the transcript on appeal. Here the matter rested until March 2, 1931, when plaintiff’s counsel gave notice that on March 16, 1931, he would move to terminate the proceedings theretofore instituted for the preparation of the transcript on appeal. Upon the hearing of this motion an affidavit made by defendant’s counsel was filed. This affidavit recites that

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on January 5, 1931, affiant was advised by the clerk of the court at Hanford, California, that it would be necessary for affiant to arrange for the preparation of the transcript on appeal with the official reporter who was present during the trial of the action, Mr. Ambrose Phillips of Madera, California; that forthwith on January 5, 1931, affiant addressed a letter to the aforementioned reporter at Madera, California, requesting him to prepare a transcript of the proceedings and to furnish affiant with an estimate of the cost thereof; that affiant received no reply to his letter from the said court reporter and again wrote the clerk at Han-ford requesting the clerk either to get in touch with the reporter or to furnish affiant more detailed information regarding the reporter’s address; that thereafter affiant received a more definite address of the reporter and on January 27, 1931, again wrote the reporter; that “several days later” he received a communication from the reporter advising him that the transcript would be prepared upon receipt of the sum of $50; that thereupon affiant addressed a letter to defendant requesting that the aforesaid sum of $50 be sent him for the purpose of defraying the expense of preparing the transcript; that affiant was, however, unable to get in touch with defendant until the latter part of February, 1931, for the reason that the defendant “was away looking after property interests”; that immediately upon receipt of the aforesaid sum of $50 from defendant on March 4, 1931, affiant forwarded the same to the court reporter, who advised Mm that the transcript would be prepared and filed at Hanford on about March 14, 1931. The affidavit concludes with a recitation of affiant’s diligence and lack of neglect in attempting to have the transcript prepared and of affiant’s familiarity with the facts of the case and his belief that the appeal will be successful. With the aforesaid affidavit, affiant presented and filed with the court the reporter’s transcript on appeal.