Union Lumber Co. v. Metropolis Construction Co.

[585]

CHIPMAN, P. J.

Motion to dismiss the appeal from the judgment, “on the ground that no transcript on appeal in said action has ever been presented or filed in said appellate court and more than forty days have elapsed since the perfecting of such appeal.”

The action was commenced in the superior court of Yuba county. It appears from the certificate of the clerk of said court that the said court, on February 17, 1910, duly made and entered its judgment in said action in favor of plaintiff and against the defendant for the sum of $1,796.66, which said judgment stands unsatisfied; thereafter, on March 7, 1910, said defendant served upon pláintiff and filed in the clerk’s office the notice of appeal from said judgment to this court, and, on the same day, filed an undertaking on said appeal; that said superior court, on February 24, 1910, duly made and caused to be filed in the clerk’s office of said court its findings and decision in said action, notice of which was on the same day duly served upon defendant; that no notice of intention to move for a new trial in said action has ever been filed in said office; that no stipulation or order granting any time for filing, preparing or serving any bill of exceptions, statement of the case or transcript in said action has ever been made, filed or entered therein, and no bill of exceptions or statement on said appeal has ever been filed in said action in the office of said clerk, or at all; that no motion for a new trial has ever been made, and no transcript on appeal has ever been certified by said clerk, or at all, nor has he been requested to certify to a correct or any transcript of the record on appeal, and no notice has ever been filed in said office by defendant and appellant in accordance with section 953a of the Code of Civil Procedure, or any notice in accordance with said section, or at all.

In a counter-affidavit, counsel for defendant does not controvert any of the facts above set forth, but deposes that after the commencement of said action, “to wit, at the time of the appearance of said defendant in said action,” defendant served on plaintiff its demand for a change of the place of trial, from Yuba county to the city and county of San Francisco, together with an affidavit of merits; that thereafter, to wit, on January 26, 1910, said motion was denied;