Stenzel v. Kronick

California Supreme Court Apr 7, 1927 No. Docket No. L.A. 9214.Published

Before: Richards

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Holding. The court held that a trial court's act of settling and certifying a transcript despite a party's failure to timely file a notice for its preparation constitutes an exercise of discretion to grant relief from default under section 473 of the Code of Civil Procedure.

Issues

Whether the trial court's certification of a transcript after a late filing constitutes a valid exercise of discretion to relieve a party from default under section 473 of the Code of Civil Procedure.
Whether the appellant sufficiently complied with requirements for printing the record on appeal in his brief.

Disposition. Motion to affirm denied.

Quotations verified verbatim against the opinion

“the trial judge “exercised his discretion in favor of certifying said transcript” and thereupon made an order that the same be settled, allowed, and certified as and for the bill of exceptions in said cause.”

“we are of the opinion that it sufficiently appears that he was granted relief from his default under the power of the court so to do, given in section 473 of the Code of Civil Procedure.”

[27]

RICHARDS, J.

The plaintiff and respondent herein has moved this court to affirm the judgment in his favor, from which this appeal has been taken, upon two grounds: (a) That no sufficient record is before the supreme court upon which said court can predicate error; (b) that no sufficient record on appeal in this case has been printed in appellant’s brief.

The facts upon which the respondent predicates his motion are these: The judgment herein in plaintiff’s favor was made and entered on December 19, 1923. Notice of entry of said judgment was served upon attorneys for the defendant on December 29, 1923. The defendant’s notice and demand for the preparation of the transcript was filed with the clerk of the trial court on January 16, 1924, sixteen days from and after the time of the receipt of the notice of entry of judgment. The transcript on appeal was presented to the trial court for certification under the provisions of section 953a of the Code of Civil Procedure on February 23, 1924. The bill of exceptions discloses that the plaintiff appeared in the trial court and objected to the certification of the transcript upon the ground that the defendant’s notice to the clerk to prepare the same had not been given within ten days after notice of entry of judgment. While it does not appear that the defendant in response to said .objections made a formal motion for relief from his default under the provisions of section 473 of the Code of Civil Procedure, it does affirmatively appear therein that the trial judge “exercised his discretion in favor of certifying said transcript” and thereupon made an order that the same be settled, allowed, and certified as and for the bill of exceptions in said cause.

The respondent in support of the first ground urged upon his motion chiefly relies upon the decision of this court in the case of

Des Granges

Des Granges,

175 Cal. 71 [165 Pac 13]. The appellant in resisting the motion cites and chiefly relies upon the case of

In re Barney,

also decided by this court and reported in 191 Cal. 18 [214 Pac. 853], In the case of

Stenzel v. Kronick

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RICHARDS, J.

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