Tobin Grocery Co. v. Spry

WASTE, C. J.

Judgment was entered in this action for the plaintiff, and the defendants appealed. Respondent has made a motion to dismiss the appeal, or for an order affirming judgment, on the ground that the notice of appeal was not filed within ten days after notice of entry of the judgment; that the trial judge exceeded his powers in granting certain extensions of time to the defendants within which to prepare the transcript; that the transcript was not filed until after the last extension granted had expired. The further ground that the defendants had abandoned the appeal may be summarily dismissed from consideration as it lacks substantial support.

Judgment was rendered, filed, and entered in the court below on September 13, 1926. No proceedings for a new trial were had, and the notice of appeal was served on September 28th and filed September 29th following. The notice of appeal was, therefore, filed within time. (Code Civ. Proc., sec. 939.)

On the thirteenth day of September, the date on which the judgment was rendered, and after it had been filed with the clerk of the court, counsel for the plaintiff delivered to counsel for the defendants a copy of the judgment, which, however, did not have “attached thereto or indorsed thereon any statement or writing stating in any manner whatever that said judgment had been theretofore filed with the clerk of the court.”

On September 29th following, the date on which the notice of appeal was filed, the defendants filed with the clerk of the court a notice stating that they intended to appeal from the judgment, and requesting that a transcript of the testimony offered or taken, the evidence offered or received, and all rulings, instructions, acts, or statements of the court, also all objections or exceptions of counsel, and

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all matters to which the same relate, be made up and prepared. Such notice is required by section 953a of the Code of Civil Procedure to be filed within ten days after notice of entry of the judgment in cases in which no proceedings on motion for a new trial are pending. We are not satisfied, however, that the purported notice of entry of judgment given defendants, in the manner and form we have referred to, was a sufficient notice to start the time running within which it was incumbent upon the defendants to give the notice to the clerk to prepare the transcript. The notice was, therefore, filed within time.