In Re Estate of Barney

WILBUR, C. J.

The trial court having denied an application for letters of guardianship of the person and estate of Lydia H. Barney, a motion for a new trial of the matter was made in the trial court, and motions were made to vacate the order denying the letters of guardianship, and in various ways the trial court was pressed for a reconsideration of the decision. The trial court having adhered to its conclusion an appeal was taken from the order denying the application for letters of guardianship and various other orders denying the application for reconsideration of such decision. The respondent moves to dismiss the appeal upon various grounds, some of which will be hereinafter stated, and also moves for an affirmance of the order of the trial court upon the ground that there is no sufficient record upon which the merits of the appeal can be considered. It is conceded that all the appeals, other than the one from the order denying the letters of guardianship, should be dismissed and that a motion for a new trial in such proceedings was not authorized by law.

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It has been frequently held and is now thoroughly established that the failure to give the notice to prepare the typewritten record for use on appeal is not a ground for a dismissal of the appeal. If, however, it appears from the entire record that, in the absence of a properly authenticated reporter’s transcript, there is no record upon which a reversal of the decision could be predicated, then the proper course is to move for an affirmance of the judgment on that ground, and upon such application the court will consider the question as to

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whether or not the record was properly prepared. It follows from what has been said that the motion to dismiss all the appeals other than the one from the order denying the application for letters of guardianship should be granted and that the motion to dismiss the latter appeal should be denied.

The motion to affirm the order denying the application for letters of guardianship and the motion for the dismissal of the appeal from such order is based upon affidavits filed by the respondent and in connection with these affidavits the appellant has filed a typewritten transcript of the proceedings at the time of the final settlement of the reporter’s transcript and its certification by the judge on September 16, 1922. From the affidavits thus presented, and from the transcript on appeal and the reporter’s transcript filed on the motion, it appears that the notice to the clerk for the preparation of the transcript required by section 953a of the Code of Civil Procedure was filed April 15, 1922, although the appellant had notice of the entry of the decree denying letters of guardianship at least as early as February 25, 1922. The time for the filing of such notice was not extended.