Town of Mill Valley v. Massachusetts Bonding & Insurance Co.

THE COURT.

The respondent has applied for a rehearing of the order denying its motion to dismiss the appeal in this ease. The rehéaring is asked on the ground that the default of the appellant occurred on October 2, 1921, which was the expiration of twenty days after he had filed his notice under section 953a of the Code of Civil Procedure, requesting a transcript of the record and proceedings in the cause for use on appeal; that the transcript was not filed in pursuance of said notice until April 27, 1922; that no extensions of time had been granted by the court, and that after. April 2, 1922, no relief from such default could be granted under the provisions of section 473 of the Code of Civil Procedure.

[1]

The facts shown by the affidavit of the appellant are that the delay was caused by the extreme length of the transcript which made it impossible for the reporter, although diligently at work thereon, to complete its preparation until April 27, 1922. This was not the default of the appellant, even if it had been shown that the official reporter was negligent in the preparation of the transcript. When proceeding under section 953a the appellant must rely on the official conduct of

[54]

the officers of the court. Their delay or default is not his delay or default. It is not a case for the application of section 473. There is no provision of the code which fixes the time, after the taking of an appeal, within which the transcript must be filed. That matter is regulated by the rules of this court. Bule II [176 Pac. vii] requires a transcript to be filed within forty days after the appeal is perfected, that is, after the filing of notice of appeal, except, among other things, that when a notice requesting a transcript under section 953a is filed, the time to file a transcript in the supreme court shall not begin to run “until such transcript is approved and certified as required by law,” or until the proceeding to obtain it “has been terminated in the court below by dismissal or otherwise.”

[2]

If there is lack of diligence on the part of the officers of the lower court in preparing the transcript, the respondent may obtain a dismissal of that proceeding, where it is proper to do so, by applying to that court. It is not the theory upon which rule II was adopted that the matter of such diligence in the preparation of the record on appeal should ordinarily be subject to investigation and determination in this court on a motion to dismiss the appeal. Such matters can more properly be adjudicated in the superior court. There has been no termination of the proceeding to obtain a typewritten transcript in the court below, by dismissal or otherwise. The transcript was not filed with the clerk as required by section 953a until April 27, 1922, and the time for settlement thereof was then fixed for May 2, 1922, of which notice was duly given.