Atowich v. Zimmer

KNIGHT, J.

The defendants appeal from an order relieving plaintiffs from default in failing to file timely request for a transcript on an appeal taken by plaintiffs pursuant to section 953a of the Code of Civil Procedure from a judgment on the merits theretofore rendered against them in the above action.

We find no merit in the appeal. The determination of the question of whether a party shall be relieved from his default must be left almost entirely to the discretion of the trial court, and it is only in exceptional cases that orders granting such relief will be reversed. Aside from the foregoing general rule, it is well settled that failure to file request for the preparation of the transcript within the statutory time is not jurisdictional to the appeal

(Lynch

v.

Coe,

203 Cal. 422 [264 Pac.

747]; Rubin

v.

Platt Music Co.,

79 Cal. App. 756 [251 Pac. 243];

Tasker

v.

Warmer,

202

[195]

Cal. 445 [261 Pac. 474]); and the decisions show that a liberal policy has been consistently followed in sustaining the action of trial courts in relieving defaulting parties for failure to file such request within the statutory period. For illustration, it has been definitely held that no formal application under section 473 of the Code of Civil Procedure is necessary; that the act of certification of the record by the trial judge is in effect the equivalent of granting relief under said section 473.

(Keys

v.

Mother Lode Extension Mines,

212 Cal. 612 [299 Pac. 524];