Attkisson v. Reynolds

PLUMMER, J.

This cause is before us upon motion of the plaintiff and respondent to dismiss the defendant’s appeal.

The motion is based upon the county clerk’s certificate setting forth the following specifications, to wit:

“That said defendant and appellant has filed no request to the clerk to prepare a transcript; that no proceedings are pending for the settlement of a bill of exceptions and no bill of exceptions has been prepared or filed and the time for presenting and filing same has long since passed.

[186]

“That no proceedings for the preparation of a transcript, under section 953a of the Civil Code of Procedure, are pending and no such proceeding was ever instituted and the time to institute same has long since expired.

“That no motion for a new trial was ever made and that the time for making such motion for a new trial has long since expired.”

As authority for the motion, attention is called to Rules 5 and 6 of rules governing practice in the supreme court and district court of appeal of the state of California, in effect on and after September 1, 1928. By reason of the omission of the clerk’s certificate, as hereinafter pointed out, it is only necessary to consider the application of the last sentence of Rule 6, which reads: “It shall be encumbent upon the party moving to dismiss to show by such certificate or by affidavit, that no proceeding for a bill of exceptions or transcript under section 953a, is pending in the trial court, and if no such proceeding was ever instituted, that the time to institute the same has expired.” The first paragraph of section 953a of the Code of Civil Procedure, after providing for the filing of a notice with the clerk specifying the particular matters which the applicant desires to have set forth in a transcript on appeal, fixes the time *for giving the notice to the clerk in these words: “Said notice must be filed within ten days after notice of entry of the judgment, order or decree, or if a proceeding on motion for new trial be pending, within ten days after notice of decision denying said motion, or other termination thereof.” Prom the time of the adoption of this paragraph of section 953a, of the Code of Civil Procedure, until the year 1927, the question of whether notice to the clerk to prepare a transcript on appeal had or had not been given in time, was being presented to appellate courts and the determination of whether the notice required by the section to prepare a transcript had been given on time was always clouded with the uncertainty as to whether the appellant had or had not given notice or whether notice was waived of the entry of the judgment, order, or decree from which the appeal was being taken. In order to settle this vexed question, the legislature, by an act approved April 4, 1927 [Stats. 1927, p. 86], added a new section to the Code of Civil Procedure, to be known as section 953d, which reads as fol