Anstead v. Pacific Gas & Electric Co.

THE COURT.

This appeal is one taken by the plaintiff from an order of the superior court of Shasta County, made on October 30, 1925, relieving the respondent upon this appeal from its alleged default arising out of its failure to give the notice and request for a transcript upon an appeal taken by it in the same action and pursuant to the provisions of section 953a of the Code of Civil Procedure. The facts with reference to these two appeals are as follows: On April 30, 1925, the jury in the above-entitled cause returned its verdict in favor of the plaintiff and against the defendant therein for the sum of fifteen thousand dollars. Judgment was entered on said verdict on May 1, 1925. On May 8, 1925, the defendant duly served and filed its notice of intention to move for a new trial. Said motion was, however, not made, and the sixty-day period in which the same must be heard and determined by the trial court pursuant to section 660 of the Code of Civil Procedure expired on June 30, 1925, and said motion was therefore upon that date denied by operation of law. On July 28, 1925, the defendant duly served and filed its notice of appeal from the judgment and upon the same date gave and filed its notice and request to the clerk to prepare a transcript pursuant to the provisions of section 953a of the Code of Civil Procedure. On August 19, 1925, owing to

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the fact that the plaintiff and respondent upon said first appeal was threatening or preparing to move to dismiss the same upon the ground that the said notice and request to the clerk to prepare the transcript therein had been served and filed too late, the defendant gave notice of an application to be relieved from whatever default there might be in the service and filing of said notice and request, and on October 13, 1925, made its motion for such relief before the trial court. In the meantime, and on October 3, 1925, the plaintiff and respondent upon that appeal had served and filed in the supreme court his notice of motion to dismiss such appeal upon the ground above stated. On October 30, 1925, the trial court made and entered its order relieving the defendant and appellant on said first appeal from “any default arising out of the failure of defendant to file its notice and request for transcript” in time, and thereupon the transcript, having in the meantime been completed and presented, was settled by the trial court after notice to counsel for both parties and without further objection or exception on the part of counsel for the respondent on that appeal. From the order of the trial court granting such relief this appeal has been taken, and has been submitted for decision upon the briefs on file.