Valine v. Valine

PLUMMER, P. J.,

pro tem.

Motion to dismiss appeal. Plaintiff and respondent obtained judgment against the defendants in the superior court of Sacramento County for the sum of $1,250, or the restitution of a certain automobile, and also for the further sum of $62.40 damages and

[419]

costs of suit. This judgment was entered on the fifteenth day of January, 1920. On January 29, 1920, defendants gave notice of motion to move for a new trial. On March 1, 1920, the court denied the defendants’ motion. On March 3, 1920, the plaintiff served upon the defendants a notice of the order of the court overruling their motion for a new trial, as above stated. On March 13, 1920, the defendants, Rosa Valine, Manuel Fernandez, and John Fernandez, filed in the superior court their notice of appeal. On March 16, 1920, said named defendants filed with the clerk of the superior court of Sacramento County a notice to prepare a transcript on appeal in this action, the same to be prepared under section 953a of the Code of Civil Procedure. On the same day the defendants filed with the clerk an undertaking to pay the costs of the preparation of the transcript, and also filed an undertaking to stay execution. No further action appears to have been taken toward the preparation of the transcript, but the records certified to by the clerk of said superior court to this court show that on the eighth day of April, 1920, an affidavit was filed by the attorney of record for the defendants, in which it is stated that the notice to the clerk was not filed within the ten days prescribed by the statute; that the reason therefor was that the attorney was awaiting the return of one of the persons who subsequently signed the undertaking delivered to the clerk to cover the costs of preparing the transcript. Upon this affidavit the judge of the trial court made the following order: “Good cause appearing therefor, it is hereby ordered, adjudged and decreed that the Clerk of the above-entitled Court prepare a transcript on appeal as requested by said defendants. Done in open Court this eighth day of April, 1920.”

No transcript on appeal has been prepared in pursuance of said notice, nor any of the other provisions of the code relating to the old method. The time for preparing and filing a transcript under the old method had expired at the time of the hearing of the motion to dismiss, and the excuse offered for not having a transcript prepared under the provisions of section 953a of the Code of Civil Procedure is that the stenographer who took the testimony in the case was no longer an official stenographer of the court and had been busy in other matters. No effort appears to have been