Davis v. Alioto

NOURSE, P. J.

This is an appeal from an order terminating proceedings to obtain the reporter’s transcript provided for by section 953a of the Code of Civil Procedure.

In an action for personal injuries verdict was rendered for defendant on June 17, 1926. Judgment was entered on the verdict on June 17, 1926. A notice of motion for new trial was given, but the motion was not pressed. Notice of appeal was given August 23, 1926, and on the same day plaintiff filed with the county clerk a notice to prepare the transcripts pursuant to section 953a of the Code of Civil Procedure. On March 5, 1930, the reporter

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delivered to the county clerk a partial transcript of the proceedings. Thereupon defendant moved to terminate proceedings to obtain the transcript. The motion was granted after a full hearing at which evidence both documentary and oral was taken.

The appeal from this order presents the single question whether the trial court abused its discretion in terminating the proceedings. The code section requires the filing of the reporter’s transcript within twenty days after the notice to prepare is filed. The time taken here was approximately three years and was not extended by stipulation or order of court. The lack of diligence is apparent and is not excused by appellant. The power of the court to terminate the proceedings under such circumstances is settled.

(Smith

v.

Jaccard,

20 Cal. App. 280, 283 [128 Pac. 1023, 1026] ;

Crocker

v.

Crocker,

76 Cal. App. 606, 609, 610 [245 Pac. 438];

Specialty Oil Tool Co.

v. Ames, 117 Cal. App. 283 [3 Pac. (2d) 977] ;

Western Concrete Pipe Co.

v.