Edgar v. Citraro

KNIGHT, J.

On August 9, 1929, a transcript on appeal in the above-entitled cause, bearing a certificate of approval and authentication by the trial judge, dated June 28, 1928, in conformity with the provisions of section 953a of the Code of Civil Procedure, was filed with the clerk of this court; and on August 19, 1929, appellant filed his opening brief. Thereafter, and on August 24, 1929, respondents served and filed a notice of motion to strike said transcript and brief from the files and to dismiss the appeal upon the ground that the transcript was transmitted to this court in

[546]

violation of an order theretofore made by the Superior Court terminating the proceedings on appeal.

It appears that four actions for damages arose out of one automobile accident, and that judgments therein were rendered against the appellant Citraro and one C. D. Pratt, jointly, each of whom took separate appeals. Consequently, there are eight appeals. In this particular appeal the appellant Citraro, in January, 1928, filed a written demand for a transcript, in accordance with the requirements of said section 953a of the Code of Civil Procedure, and in July, 1929, respondents moved the Superior Court to terminate the proceedings taken in that 'behalf upon the ground that appellant had been guilty of laches in his efforts to procure the transcript. The action had been tried on the merits in department 5 of said court, but respondents’ motion to terminate the proceedings on appeal came on for hearing in another department, and on July 31, 1929, was heard and determined by a judge other than the one who had presided at the trial; and, according to the statement of counsel for appellant, the accuracy of which was not seriously disputed, at the time the said motion was heard and determined everyone connected with the proceeding, including the phonographic reporter who reported the several trials, believed that the ■ transcript in this particular appeal had not yet been completed. Shortly after the order was made, however, terminating the proceedings, the reporter found the transcript, which apparently had been misplaced, and which had been duly certified by the trial judge as to truth and correctness on June 28, 1928, more than a year prior to the hearing of the motion to terminate the appeal proceedings; and thereupon the transcript was filed with the county clerk and a few days thereafter was transmitted to this court. The whereabouts of the transcript from the time it was certified by the trial judge, in June, 1928, until it was produced and filed, in August, 1929, has not been made clear. Presumably, however, it was in the possession of the reporter, and appellant attributed the confusion in the matter to the fact that the reporter was obliged to prepare a number of transcripts in furtherance of the several appeals.