Davis v. Schneider

WOOD (W. J.), J.,

pro

tem.

Defendants appeal from an order of the superior court permitting the filing of a copy of plaintiff’s notice of appeal to be used in lieu of the original. Notice of the entry of judgment in favor of defendants was served on April 26, 1924. Stipulations were filed whereby plaintiff was given to July 2, 1924, in which to prepare, serve, and file her bill of exceptions. A proposed bill of exceptions was served on July 2, 1924, and amendments thereto were proposed on July 10, 1924, most of which were accepted, leaving certain matters for settlement by the court. These matters appear from the record without recourse to the affidavit of Kimball Fletcher, one of plain

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tiff’s attorneys. In this affidavit it is set forth that the affiant in November, 1924, telephoned to Mr. Williams, one of the attorneys for the defendants, and asked Mr. Williams if he was ready to propose Ms amendments, to which Mr. Williams replied that he had lately inspected the files and not finding any record of a notice of appeal concluded that the appeal had been abandoned. Thereupon Mr. Fletcher, according to the affidavit, caused a search to be made in the office of the county clerk, but could find no notice of appeal or record of its filing in the register of actions. Affiant states positively that he had in fact filed the notice of appeal on June 24, 1924, and details the circumstances surrounding the filing. In explanation of his delay in presenting a motion for a substitution of a copy in lieu of the original notice of appeal, affiant mentions certain work in which he was engrossed, including that of chairman of the committee of the Los Angeles Bar Association on the subject of bills to create the municipal court. Mr. Williams did not file an affidavit denying Mr. Fletcher’s statement concerning the conversation by telephone in November.

The trial court wasg justified in making its minute order of April 7, 1925, permitting a substitution of a copy of the notice of appeal. Section 1045 of the Code of Civil Procedure provides: “If an original pleading or paper be lost, the court may authorize a copy thereof to be filed and used instead of the original.” In

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