Miller v. Price

California Supreme Court Apr 2, 1928 No. Docket No. L.A. 10217.Published

Before: Waste

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Holding. The court denied the motion to dismiss the appeal, holding that a judgment-roll and notice of appeal constitute a sufficient record for review and that the late filing of the transcript was cured by its presence in the court at the time the motion to dismiss was noticed.

Issues

Whether the failure to file a transcript under section 953a of the Code of Civil Procedure warrants dismissal of an appeal.
Whether a judgment-roll and notice of appeal are sufficient to constitute a record on appeal without a transcript prepared under section 953a.
Whether an appeal should be dismissed when the transcript is filed after the forty-day deadline but before the motion to dismiss is noticed.

Disposition. denied

Quotations verified verbatim against the opinion

“A judgment-roll is a sufficient record for the review of all rulings which appear thereon, and of the sufficiency of the pleadings and findings to support the judgment.”

“The motion to dismiss appeal is denied.”

WASTE, C. J.

Respondents move to dismiss the appeal from the judgment on the ground that no transcript of the record, certified to be correct by the clerk of the court below, or the attorneys, has been filed here within the time required by rule II of this court, and that no proceeding, either for the settlement of a bill of exceptions, or for the preparation of a transcript under the provisions of section 953a of the Code of Civil Procedure, is pending or may yet be instituted.

Judgment for the defendants on the pleadings was given and filed July 1, 1927. It was docketed and entered July 8, and the judgment-roll was made up on that day. Notice

[774]

of entry of judgment was served on plaintiff and filed July 11. A notice of appeal was filed September 6. From the clerk’s certificate, and the affidavit offered in support of the motion to dismiss, it appears that a proposed bill of exceptions was served by plaintiff on the defendants on October 6, 1927, and delivered to ' the clerk on October 7. It has never been settled, and no order has been made giving or granting appellant additional time, in which to prepare, serve, and file a proposed bill, and no other proceedings appear to have been instituted to obtain one. In a counter-affidavit made and filed by counsel for appellant in opposition to the motion to dismiss, the affiant asserts that no document purporting to be a proposed bill of exceptions was ever delivered to the clerk. We may therefore conclude that, if there was any attempt to present a record on appeal by means of a bill of exceptions, it has been abandoned.

No notice was given to the clerk of the lower court to prepare a transcript to be used in lieu of a bill of exceptions, as provided in section 953a of the Code of Civil Procedure, and it does not appear that appellant has been relieved from hi.s default in that regard. Consequently, the court could not now settle and certify to the correctness of any such transcript should one be prepared and presented.

(Spear

Monroe,

181 Cal. 728 [186 Pac. 149];

Brown

Miller v. Price

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WASTE, C. J.

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