Jones v. Superior Court

CRAIG, J.

Among others, the respondent W. J. Bryant was made a defendant in a suit brought by petitioner in the Superior Court of San Diego County; later a judgment was rendered in favor of the plaintiff. This was on the sixteenth day of April, 1925, and it was entered on the following day. On the twenty-seventh day of May, 1925, Bryant filed a notice of appeal and request for transcript of proceedings with the county clerk. On October 13, 1925, he, through his counsel, filed a notice stating that on the nineteenth day of October he would move the court for an order allowing him to file a request for transcript of the proceedings and an order directing the clerk to forward said transcript to the supreme court. The notice indicated that the motion would be for relief under section 473 of the Code of Civil Procedure because of mistake, etc., in making a request for transcript more than ten days after notice of the entry of judgment, and stated that it would be based on two affidavits which were filed with the notice of motion. Bryant’s counsel appeared in court at the time designated, called attention to his notice and affidavits, and announced his readiness to present the motion. At that time counsel for petitioner was not present; there was no showing in the record then, and is none now, that he had been served with notice that the motion would be made, and the court requested that counsel for Bryant procure the attendance of counsel on the other side, and stated that when this was done the matter would be taken up. It appears that on the second day of December another notice similar to that last mentioned was filed, and on December 21, 1925, pursuant thereto, counsel for petitioner and for respondent Bryant were in court. Thereupon the latter made the motion noticed to be made at that time. No entry was made by the clerk of any proceeding on the 19th of October, but on the twenty-first day of December the court made the following order,

nunc pro tunc:

“Nunc Pro Tunc

Minute Entry as of Monday, October 19th, 1925, at 10 o'clock a. m. thereof.

[165]

“This being the time heretofore noticed for the hearing of the defendant W. J. Bryant’s Motion for Belief under Section 473 of the Code of Civil Procedure, comes now the defendant W. J. Bryant herein by counsel A. GL Beily, Esq., and announced that he was ready to present said motion. The plaintiff not appearing and it appearing that counsel for said plaintiff had heretofore notified the Court that he desired that no Proceedings be had in said cause in his absence, said hearing is continued by the Court until such date as may be agreed upon by and between respective counsel herein.”