Cox v. Palos Verdes Co.

ANGELLOTTI, C. J.

Motion to dismiss appeal from the judgment for failure to file transcript within the time prescribed by the rules of this court.

The appeal herein was taken July 23, 1915, and the time for filing a transcript has long since expired, unless there is

pending

in the superior court a proceeding for the settlement of a bill of exceptions or statement which may be used in support of the appeal. (Rule 2.) The certificate of the clerk of said court on which the motion is based does not show the fact in regard to this, but said certificate, when taken in connection with certain affidavits filed by appellants, fairly shows all material facts.

The judgment was entered June 2, 1915, and notice of entry was served on appellant on June 3, 1915. Notice of intention to move for a new trial was not filed úntil June 15, 1915, which admittedly was too late, and the notice was therefore ineffectual for any purpose. On August 9, 1915, the motion for a new trial was dismissed. The notice of motion for new trial specified that the motion would be based on a statement on motion for a new trial. No proposed statement was served until July 24, 1915. The judge had on June 24, 1915, made an order granting appellant “thirty days in addition to the time allowed by law within which to serve his proposed statement on motion for a new trial, if motion has been properly made, or relief granted by the court as to any defect now existing.” Beserving all objections to the settlement of the statement, respondents served proposed amendments thereto, and on August 14, 1915, the proposed statement and proposed amendments were delivered by appellant to the clerk of the court for the judge. They have ever since

[704]

been on the files of the court and were not called to the attention of the judge until after the giving and filing of notice of this motion to dismiss, March 30, 1916. The trial judge has made no formal disposition of the matter of the settlement of such statement. The trial court has made no order relieving appellant from the effect of any default in the matter, and it is not claimed that any application for any such relief has ever been made.

The question then is whether, in view of these facts, a proceeding for the settlement of a statement that may be used on the appeal from the judgment is “pending” in the superior court within the meaning of our rule. We think it clear that it must be held that no such proceeding is now pending or has been pending at any time since December 14, 1915, even if pending before said date. If appellant’s notice of intention to move for a new trial had been served and filed in time, he would have been entitled to serve his proposed statement on motion for a new trial, which could also have been used on his appeal from the judgment