Rubin v. Platt Music Co.

THOMPSON, J.

This is a motion to dismiss the appeal on the ground that no transcript or bill of exceptions was

[757]

filed within the time required. It appears that judgment was entered on February 16, 1926, and notice of entry thereof given on the same day; that notice of intention to move for a new trial was filed within the time and on February 26, 1926; that nothing further was done with respect to the motion for a new trial and therefore it was denied by lapse of time on April 16, 1926; on March 3, 1926, the appellant gave notice that it appealed; the motion to dismiss the appeal was served on May 13, 1926, and came on for hearing on the fourteenth day of June, 1926. In the meantime, and on June 5, 1926, both the clerk’s transcript and the reporter’s transcript were filed in this court.

The two transcripts having been filed prior to the time that the motion came on for hearing, the real ground of the motion to dismiss is that the appellant did not give notice of the request for a transcript of the testimony within ten days after notice of the entry of the judgment, or within ten days after motion for a new trial was denied by lapse of time.

In the case of

In re Barney,

191 Cal. 18 [214 Pac. 853], it is said: “It has been frequently held and is now thoroughly established that the failure to give the notice to prepare the typewritten record for use on appeal is not a ground for a dismissal of the appeal. If, however, it appears from the entire record that, in the absence of a properly authenticated reporter’s transcript, there is no record upon which a reversal of the decision could be predicated, then the proper course is to move for an affirmance of the judgment upon that ground, and upon such application the court will consider the question as to whether or not the record was properly prepared.” And in

Mill Valley

v.

Massachusetts etc. Co.,

189 Cal. 52 [207 Pac. 253], it is held that diligence in the preparation of the record on appeal should ordinarily be subject to investigation and determination in the trial court rather than in the appellate court.