Callaway v. Wolcott

HAZLETT, J.,

pro

tem.

Plaintiffs appeal in this action pursuant to the alternative method provided for in sections 953a, 953b, and 953c, of the Code of Civil Procedure, from an order of the trial court relieving defendant (respondent) N. A. Wolcott, under the provisions of section 473 of the Code of Civil Procedure, from his failure to file with the clerk his notice pursuant to the provisions of section 953a, within the time therein limited, to require the preparation for certification of a transcript of the record in the prior appeal which he made from the judgment entered against him in the action.

However, the appellants in this appeal did not print in their briefs or in a supplement thereto any part of the record except a portion of an affidavit made by defendant Wolcott in support of his application for the relief, which printed portion in itself is insufficient to show error on the part of the trial court in granting the relief. Respondent Wolcott’s brief does not aid appellants in their appeal, for he printed no portion of the record. Therefore, the record properly before us fails to show error on the part of the trial court in permitting the notice to be filed with the clerk requiring the preparation of the transcript after the time limited by section 953a.

The supreme court definitely announced in a very recent decision in a case where the appeal was made pursuant to the alternative method and the appellant failed to print in his brief on appeal or in a supplement thereto any part of the record sufficient to justify a reversal, that “It devolves

[756]

upon the appellant to affirmatively show the existence of error upon which he asks for a review. . . . We are unable to say, therefore, that error was committed by the trial court . . . All presumptions indulged in are in favor of the regularity of the judgment and proceedings upon which it is based, hence it devolves upon an appellant to affirmatively show the existence of the error upon which he asks for a reversal. ... It has been reiterated approximately one hundred times in the decisions of this court and of the District Courts of Appeal that it is incumbent upon an appellant who relies upon a typewritten transcript to print in his brief or in a printed supplement thereto sufficient of the record to justify a reversal of the judgment or order appealed from.”