Harpold v. Slocum

SHAW, J.

This case is within the appellate jurisdiction of the district court of appeal. Appeals were regularly taken to the district court of appeal of the second district by the defendants from the judgment and from an order refusing a new trial. Thereafter a document was filed in that court purporting to be a transcript on appeal and which the appellants claim is sufficient in that respect. Upon motion of the respondent the district court dismissed the appeal, holding that the document so filed did not constitute a transcript on appeal, and that no sufficient transcript had been filed within the time prescribed by the rules of this court. Upon petition this decision was set aside and the cause was transferred to the supreme court for further consideration.

The appellants filed a typewritten transcript consisting of a single copy and without serving a copy thereof upon the respondent. They claim the right to proceed in this manner under the provisions of sections 953a, 953b, and 953c of the Code of Civil Procedure. The facts concerning the matter and pertaining to this question are as follows: The judgment

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was rendered on March 3,1913, and entered on March 5, 1913. Within ten days after the entry of judgment the defendants filed a notice with the clerk requesting the preparation of a transcript as provided in section 953a, but they did not file any undertaking to pay the costs thereof as provided in section 953b. The clerk paid no further attention to this notice and did not require the stenographic reporter to make a transcript of the record in accordance with the provisions of section 953a. Thereupon the defendants proceeded under the old method of preparing transcripts, by proposing a statement of the case on motion for a new trial. This statement was duly settled by the judge of the court below and thereupon a motion for new trial was made and submitted to that court, and the same was denied. Upon the denial of this motion the defendants again filed with the clerk a request for the preparation of a transcript after the manner provided in 953a, but again failed to file any undertaking to pay the costs of such transcript, and again the clerk refused to require the reporter to make the same. Thereafter the defendants procured from the reporter a typewritten copy of the papers constituting the judgment-roll under, the provisions of section 670 of the Code of Civil Procedure and also of the above mentioned statement of the ease on motion for new trial and a copy of the order denying the said motion and of their notice of appeal. They also procured the judge of the superior court to certify to the correctness of the copy of the statement on motion for new trial and of the order denying said motion. These copies are those which they have filed as the transcript on appeal.