McIntosh v. Funge

KNIGHT, J.

Following the filing of the

remittitur

after affirmance of judgment on the merits in the above-entitled cause

(McIntosh

v.

Funge,

210 Cal. 592 [292 Pac. 960, 74 A. L. R. 420]), two motions were presented in the trial

[612]

court, one on behalf of certain plaintiffs for substitution of parties, which was granted; the other on behalf of the defendant W. W. Funge, Jr., now deceased, to tax costs on appeal, which resulted in an order being made taxing costs against said defendant in the sum of $100; and he appealed from the order made in each proceeding. Plaintiffs now move to dismiss the appeals and to affirm the orders upon the ground that the purported transcript upon which appellant seeks to have the appeals heard and determined was not prepared, settled, certified or filed in the manner prescribed by law and the rules of court.

The trial court proceedings took place in the superior court in and for the city and county of San Francisco. The notices of appeal were filed on January 8, 1931, shortly after the orders appealed from were made; and defendant proceeded to take both appeals by way of bills of exception, which eventually were prepared, settled and certified in accordance with the provisions of section 650 of the Code of Civil Procedure. The bill upon which the appeal was taken from the order of substitution of parties was settled, certified and filed on January 28, 1931, by the Honorable B. P. Mogan, who heard and determined the motion therefor; and the bill upon which the appeal from the order taxing costs was taken was' settled, certified and filed on October 27, 1931, by the Honorable James G-. Conlan, who heard and determined that proceeding. In the meantime and on July 1, 1931, which, as will be noted, was approximately six months after the notices of appeal were filed, appellant filed with the clerk of the trial court a request to prepare transcripts on appeal pursuant to the alternative method provided by section 953a of the Code of Civil Procedure, in which request appellant specified the documents and papers the transcript should contain, “including defendant’s proposed bill of exceptions and plaintiffs’ proposed amendments thereto and all orders of the court thereon”; and on November 4, 1931, he applied for an extension of time to prepare and file such transcript, which extension was denied. Notwithstanding such denial appellant on December 15, 1931, filed with the clerk of the trial court a purported (typewritten) transcript, but which did not contain a copy of either of the bills of exception theretofore certified and filed as aforesaid. The clerk of the