Somers Co. v. Smith (1920) · DecisionDepot

Somers Co. v. Smith

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Dec 16, 1920 No. Civ. No. 3284.Published

Before: Brittain

AI Brief

AI-generated · verify before citing

Holding. The court held that the trial judge did not abuse his discretion in denying a motion to vacate an order refusing to certify a transcript, as the appellant failed to demonstrate the requisite diligence or provide new evidence of mistake, inadvertence, surprise, or excusable neglect.

Issues

Whether the trial court abused its discretion in denying a motion to vacate an order refusing to certify a transcript under section 473 of the Code of Civil Procedure.
Whether the appellant demonstrated the necessary diligence required for relief under section 473 of the Code of Civil Procedure.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A prime requisite for relief under the provisions of section 473 of the Code of Civil Procedure is that the party claiming injury from mistake, inadvertence, surprise, or excusable neglect shall show, affirmatively, diligence on his own part”

“The entire record fails to show any diligence on the part of the appellant in bringing to hearing an appeal from a judgment which is presumably correct”

Synopsis

APPEAL from an order of the Superior Court of the City and County of San Francisco denying a motion to vacate a prior order denying a motion to have certified a transcript on appeal. E. P. Mogan, Judge. Affirmed.

The facts are stated in the opinion of the court.

BRITTAIN, J.

The defendant appeals from an order denying his motion, made under the provisions of section 473 of the Code of Civil Procedure, to vacate a prior order denying a motion to have certified a transcript for use on appeal from a judgment dated May 15, 1917.

The appellant, as trustee for the creditors of the lessee of property of the plaintiff corporation, was sued for rent

[421]

of the premises during his occupancy after the original lessee had made to him a general assignment for the benefit of creditors. The judgment was for $970.85 and costs. Motion for new trial being denied, on August 21, 1917, the statutory notice was given the clerk of the court, and a copy thereof to the official reporter, for the preparation of transcript of the clerk’s record and the trial proceedings. Notice of appeal was filed under the alternative method on September 15, 1917. No transcript was filed until April 4, 1918, when notice was given that it would be presented for settlement on April 8, 1918. Objections on several grounds to_ the settlement and certification of the transcript were presented to the judge before whom the matter was pending. The record fails to show formally when the matter was submitted, but since it appears that the counter-affidavits on behalf of the appellant in reply to the respondent’s affidavits concerning the certification were filed in open court on June 5, 1918, and no further proceedings before determination appear, it may be assumed the matter was submitted on that day or shortly thereafter. Nearly a year later,' May 14, 1919, there was a minute order denying the motion.' The motion to vacate this order was noticed for June 20, 1919, on the grounds of mistake, inadvertence, surprise, and excusable neglect. The hearing was partly had and postponed from time to time until November 14, 1919, when the motion was denied. Notice of appeal from this order was filed November 26, 1919. The typewritten transcript bears a filing date in the superior court, January 2, 1920. It was certified by the clerk and filed in this court on April 5, 1920, and the appellant’s closing brief was not filed until September 7, 1920. It does not appear that any of the many delays in bringing up for review the judgment for rent entered three and a half years ago were caused by the respondent or its attorneys.

Related research

and impertinent matters. The substantial statements relied ón by the appellant on the motion to certify the transcript on the appeal from the judgment are that the reporter was inducted into military service shortly after the notice to prepare the transcript was given, and its preparation was thereby delayed; that the reporter, through ignorance or neglect, failed to prepare the clerk’s transcript; that the appellant was compelled to employ outside help to have the transcript completed, when it was filed on April 4, 1918, seven and a half months after the order for the transcript was given. He contended, also, that there was an agreement between himself and the reporter that the clerk’s transcript and the reporter’s transcript should cost only $225. According to the reporter’s affidavit that figure was given by him as an approximate estimate of what the reporter’s transcript alone would cost. The reporter’s transcript was delivered to the appellant on November 15, 1917, and in January, 1918, the appellant and the reporter, who were wrangling over the payment of the reporter’s bill, adjusted between themselves their difficulties. The appellant was away from San Francisco a great deal of the time during the first three months of 1918. His stenographer, who copied the clerk’s transcript, also copied for the appellant’s use the reporter’s transcript, and a considerable portion of the delay in filing the transcript was caused by this work undertaken for the appellant’s benefit.. No stipulation or orders were obtained by the appellant for extensions of the statutory twenty days for the filing of the transcript. No proceedings were instituted to compel the reporter to perform his duty, and no formal motion was made for relief because of inadvertence or excusable neglect. The element of surprise was wholly lacking. Because of the delay the certification of the transcript was opposed. The facts were before the judge when the motion for certification was submitted, and in the exercise of his discretion, on the conflicting evidence before him, he might have relieved the appellant from the consequences of delay. The certification was also opposed on the ground that the transcript was unreliable because for a period of something over four months it had been out of control of the court, and while no suggestion is made that it had been in any way altered, it was argued that the statute contem

AI Brief

Synopsis

BRITTAIN, J.

More from California Court of Appeal

Related research

AI Brief