Shaw v. Blasevich

CHIPMAN, P. J.

Motion to dismiss "defendant’s appeal from the judgment.

It appears that, on June 4,. 1912, judgment was rendered and entered in the above entitled action in favor of the plaintiff and against the defendant; that thereafter, to wit, on August 2, 1912, defendant .filed notice of appeal in said action, said notice bearing date June 25, 1912, “wherein said defendant and appellant appealed to the district court of appeal of the state of California for the first district, from the aforesaid judgment so made and entered therein on said June 4, 1912”; that “an undertaking on appeal,'in due form

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of law was thereafter filed in said action on August 6, 1912; that no bill of exceptions or statement on appeal has been prepared, served, settled or filed, nor has any affidavit or affidavits or other moving papers on appeal ever been prepared, served, filed or settled. That no reporter’s transcript prepared under section 953a of the Code of Civil Procedure of the state of California has been filed with the clerk of this court; that the appellant herein has not requested the clerk of this court to make or certify to a correct transcript of the record herein, nor has the same been demanded, nor have the fees therefor been paid.” The foregoing facts appear from the certificate of the clerk of the superior court in and for Alameda County, of date January 10, 1913, where the case was tried. Plaintiff moves for the dismissal of the appeal “for failure to file the transcript within the prescribed time and for lack of diligence in prosecuting said appeal.”

The notice of motion to dismiss the appeal was served on February 13, 1913, and filed in this court on February 15, 1913.

The showing made by appellant is the certificate of the clerk of said superior court, bearing date March 6, 1913, that, on June 15, 1912, defendant and appellant “filed a written demand that a transcript of the phonographic report be made up and prepared” of the testimony, evidence, rulings of the court, objections and exceptions of counsel “and all matters to which the same relate”; that, on August 15, 1912, defendant filed and served notice of intention to move for a new trial; and that, “on January 15, 1913, plaintiff filed a notice of motion to dismiss said defendant’s motion for a new trial, in said action, which was not decided until January 31, 1913”; that, “on January 31, 1913, the phonographic report of said trial was filed in this (superior) court” and “has not yet been approved or certified, nor has any proceeding to obtain said certificate or approval been terminated by any order of court.” This certificate was filed- in this court March 6, 1913, as an answer to the motion to dismiss.