Lynch v. Coe

California Supreme Court Feb 24, 1928 No. Docket No. 9581.Published

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Holding. The court held that a defective notice to the clerk requesting a record does not preclude an appellate court from considering a properly certified transcript of the proceedings. The act of certification by the trial judge is considered equivalent to relief from default.

Issues

Whether a defective notice to the clerk requesting a record precludes the consideration of a properly certified transcript on appeal.
Whether defects in a request for a transcript are jurisdictional to an appeal.

Disposition. Motion denied.

Quotations verified verbatim against the opinion

“It has consistently been held that defects appearing in a request for a transcript are not jurisdictional to an appeal.”

“The later cases, however, have modified this rule and declare that the act of certification by the trial judge is, in effect, the equivalent of relief from default under section 473 of the Code of Civil Procedure.”

THE COURT.

The respondent Lynch presents herein a motion for diminution of record and seeks thereby to have stricken from the files of this court the transcript of the

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testimony taken before the lower court. This attempt to have the reporter’s transcript stricken is based upon the assertion that the appellant’s notice to the clerk to prepare a record neglected and failed to request that a transcript of the testimony be made up. The appellant seeks to explain the omission or defect by stating that he had contemplated malting an independent arrangement with the reporter in connection with the preparation of a transcript of the proceedings in the trial court. Appellant’s notice to the clerk, which was timely filed, reads in part as follows: “ . . . said defendant hereby requests that the judgment roll be made up and prepared' and contain any and all matters of record herein, together with all exhibits and documentary evidence introduced and on file, and any and all matters and facts pertaining to said action except the transcript of testimony.” The most cursory examination readily discloses that said notice and request is, to say the least, inartificially drawn. In fact, it may be stated to be wholly defective in so far as the preparation thereunder of a transcript of the testimony might be concerned. However, the defect is not fatal, nor such as would preclude an appellate court from considering upon an appeal from the judgment a properly certified transcript of the proceedings in the court below. In this connection the case of

Carr

Stern,

17 Cal. App. 397, 402 [120 Pac. 35], may be said to be in point. It is there declared: “As to the omission to embrace in the notice a request that a transcript of the testimony offered or taken and evidence offered or received be made up and prepared, the reply is that such record was made up, was approved by the judge, and as so prepared and approved is now before us.” It has consistently been held that defects appearing in a request for a transcript are not jurisdictional to an appeal.

(Tasker

Lynch v. Coe

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THE COURT.

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