Goldberg v. Davis

[490]

HOUSER, J.

A motion to dismiss the appeal herein has been presented by the respondent on the ground that there was a failure to file the transcript within the time required by law.

Without conceding the fact that the transcript was not filed within the time prescribed by the rules of this court, under the provisions of section 473 of the Code of Civil Procedure appellant has prayed to be relieved from any default on the ground that it arose through mistake, inadvertence, or excusable neglect.

Appellant represents that the reason for her failure to file the transcript on appeal within the required time was because, although the attorney who represented her on said appeal gave the order to the clerk of the trial court to prepare the transcript on appeal, such transcript was not prepared and made ready for certification and approval by the trial judge in accordance with the provisions of the statute, solely because of a misunderstanding by her attorney of an arrangement for such matters in general existing between him and such clerk.

Section 953b of the Code of Civil Procedure provides in substance that at the time the notice of appeal is filed with the clerk the appellant shall also file an undertaking by which the appellant shall become bound to pay to the clerk the cost of preparing the transcript, or that the appellant may arrange personally with the stenographic reporter for his compensation.

Counsel for appellant has filed an affidavit herein by which it appears that in each of five different cases arising in the superior court, and in which appeals were taken by him for his several respective clients in such matters in the same manner as was the appeal taken in the instant case, he filed his notice of appeal, made his demand for the clerk’s transcript in accordance with the provisions of the statute, and in each case, after the transcript had been prepared and the bill for the cost of the preparation thereof presented to counsel representing the appellant, he had paid the same; that in the instant case he followed the same course and fully believed that the transcript would be prepared and the bill therefor thereafter presented as had been done in each of the other cases to which