Taft v. Security-First National Bank of Los Angeles

BARNARD, P. J. Judgment in this action was entered on March 29, 1933. A motion for a new trial was denied on May 31, 1933. On June 10, 1933, the plaintiff filed notice of appeal and also filed a notice addressed to the clerk of the court requesting the preparation of a transcript. The clerk fixed the amount of the undertaking to be filed in connection with said request for a transcript and notified counsel' for the appellant. No undertaking has been filed and no transcript has been settled or filed. The record does not disclose that anything further has ever been done in connection with preparing or filing any transcript. Counsel for the respondents filed on September 8, 1933, a notice of motion to terminate proceedings for preparing a transcript. [230]This motion was noticed for September 15, 1933, at which time it was continued to September 29, 1933. On September 28, 1933, the appellant filed a substitution of attorneys, substituting himself as his own attorney in the action, the substitution being duly signed and served by and' on all parties concerned. On September 29, 1933, the appellant appeared in person and requested a continuance and the hearing of the motion was continued to October 20, 1933. Thereafter, at the request of the appellant, the hearing was continued respectively to November 24, 1933, to February 2, 1934, and to February 23, 1934. On the last-mentioned date said motion came on for hearing and no undertaking having been filed and no transcript having been settled or filed, the court granted the motion and entered its order terminating and' dismissing the proceeding to procure such a transcript.

On April 3, 1934, the cause was transferred by the Supreme Court to this court. On April 11, 1934, the respondents filed a notice that on April. 27, 1934, they would move this court for an order dismissing the appeal in said action. When the matter came on for hearing on that day the appellant was present in person, without counsel, and filed a supplemental certificate of the county clerk setting forth the following matters which had occurred in the trial court after the original clerk’s certificate was issued: On April 18, 1934, a substitution of attorneys was filed substituting Rollin L. McNitt as attorney for the appellant. On the same day, the appellant, through his substituted counsel, filed notice of a motion to set aside the order of February 23, 1934, granting the motion to terminate the proceedings to prepare a transcript, and for relief under section 473 of the Code of Civil Procedure, it being set forth that the motion would be based upon the ground that the order of February 23, 1934, was entered through the mistake, inadvertence, surprise and excusable neglect of appellant’s attorney. This motion was heard upon affidavits on April 21, 1934, and, on that day, the court entered an order denying the motion and refusing to vacate the previous order entered on February 23, 1934. On April 25, 1934, the appellant filed notice of appeal to the Supreme Court from the order so entered on April 21, 1934. On the same