Weaver v. Shell Oil Co.

[235]

KNIGHT, Acting P. J.

Judgment for damages based on verdict by a jury was entered in favor of the plaintiffs in the above-entitled cause, and the court granted a new trial. Plaintiffs appealed, and defendants now move to affirm the order granting the new trial or to dismiss the appeal upon the ground that there is no record upon which the appeal may be legally heard and determined. A typewritten transcript purporting to have been settled, approved and certified by the trial judge in conformity with the provisions of section 953a of the Code of Civil Procedure was filed in the reviewing court approximately two months prior to the service of notice of the present motion, but defendants contend that the trial judge was without jurisdiction to.approve or certify the same and that therefore said transcript is unavailing for any purpose on the appeal.

Said section 953a under the authority of which plaintiffs elected to present the appeal, declares that the request to prepare the transcript must be filed with the clerk of the trial court within ten days after service of notice of entry of the order from which the appeal is taken. In the present case such notice was served on June 3, 1930, but the request was not filed until August 12, 1930, more than two months after the service of the notice; and the transcript was not certified until February 23, 1932, about eighteen months after the request was filed. Defendants contend, therefore, that on account of plaintiffs having defaulted in failing to file timely request to prepare the transcript “the trial judge was without jurisdiction to certify the transcript after the expiration of six months from the time of said default”. This contention is based upon the assumption, however, that the six months’ period fixed by section 473 of the Code of Civil Procedure within which the trial judge retained jurisdiction to relieve plaintiffs from their default began to run from the date on which plaintiffs should have filed the request for the transcript; and such is not the law, for it is well established that in proceedings of this kind the time does not begin to run until some proceeding or action is taken by the adverse party based upon the default, or some order of the court is made as a result thereof

(Weyse

v.

Biedebach,

86 Cal. App. 728 [261 Pac. 1096] ;