Wadsworth v. Gonzales

MARKS, J. This is a motion to dismiss an appeal from a judgment and from an order denying motion for new trial. No bill of exceptions or clerk’s or reporter’s transcripts have been filed in this court.

A certificate of the county clerk of Kern County filed in support of the motion discloses the following facts: That [652]the action was brought for the recovery of damages suffered in an automobile accident; that on November 23, 1932, the jury returned a verdict in favor of defendants and judgment was entered on the -verdict giving them their costs; that a motion for new trial was made; that notice of appeal was filed on February 14, 1933; that on March 30, 1934, the trial judge refused to sign the bill of exceptions on the ground that it did not comply with the provisions of the Code of Civil Procedure; that no proceedings are pending in the trial, court for a transcript under the provisions of section 953a of the Code of Civil Procedure.

On November 9, 1934, plaintiff filed in this court her verified petition for a writ of mandate against the Superior Court of Kern County and the trial judge seeking to force the settlement of the bill of exceptions. This petition was denied without opinion under authority of Derr v. Busick, 63 Cal. App. 134 [218 Pac. 280].

In addition to the very meager facts set forth in the certificate of the county clerk we glean the following from the verified petition for the writ of mandate: That a proposed bill of exceptions was prepared and filed within the time allowed by law, order of the court and stipulation of the parties; that amendments to the proposed bill of exceptions were proposed by defendants; that hearings were had before the trial judge in an endeavor to settle the bill of exceptions on October 28, 1933, November 4, 1933, and February 24, 1934, on which last date the matter of settlement was continued to March 30, 1934; that on that date a motion was made by defendants to dismiss the proceedings for the settlement of the bill of exceptions which was denied by the trial judge at the same time that he refused to settle the proposed bill.

Rule I of the Rules for the Supreme Court and District Courts of Appeal provides in part as follows: “The appellant in a civil action shall, within forty days after an appeal is perfected, except as hereinafter stated or as otherwise provided by law, serve and file the printed transcript of the record duly certified to be correct by the attorneys of the respective parties, or by the clerk of the court from which the appeal is taken. If a proceeding for the settlement of a bill of exceptions which may be used in support of such appeal is pending or may still be instituted, the time afore