Gulf Mail Steamship Co. v. W. A. Hammond Steamship Co.

ST. SURE, J.

This is an appeal from an order of the superior court amending

nunc pro tunc

a previous order granting a new trial.

After the transcript, certified by the clerk and by the trial judge, had been filed in this court, respondent made herein a motion for affirmance of the judgment upon technical grounds. It appears that appeal was taken in due time (sec. 953a, Code Civ. Proc.), transcript prepared and

[422]

filed, and notice given of presentation of transcript to the trial judge for approval. The trial judge approved the transcript on January 3d. Thereafter appellant discovered that through inadvertence notice of appeal had been omitted from the transcript, and without further notice to respondent appellant inserted in the transcript the notice of appeal, and procured from the trial judge and clerk new certifications dated January 9th. Respondent complains that failure to give due notice of such recertification invalidated the whole procedure. We fail to see wherein any substantial right of respondent was affected. The transcript, recertified, was, with the exception of the inclusion of the notice of appeal, the same. Admittedly, appeal had been properly taken. The omission of the notice of appeal, even though the transcript had been filed, might have been thereafter, in the interests of justice, supplied upon suggestion in this court of diminution of record. Furthermore, the motion to affirm, coming as it does, after the transcript had been certified by the trial judge, and filed in this court, must be denied and the appeal considered upon its merits.

(Revert

v.

Hesse,

184 Cal. 295 [193 Pac. 943];

White

v.

Hendley,

35 Cal. App. 267, 270 [169 Pac. 710].)

As to the merits, the record shows that Judge John Hunt, presiding in department 5 of the superior court, granted a motion for a new trial. The clerk of the court entered a minute order thereof as follows: “The motion for a new trial having been heretofore submitted to the court for decision, and the court having fully considered the same, it is ordered that the said motion be, and the same is, hereby granted. ‘Opinion filed.’ ” While an appeal was pending, respondent herein applied to the superior court for an order amending