Silva v. Co-operative Dairymen's League

STURTEVANT, J. Heretofore the plaintiff commenced two different actions in which he sought to recover judgments for money had and received. Thereafter for the purpose of trial the two actions were consolidated. Still [295]later the actions came on for hearing and on December 13, 1933, the trial court caused to be entered a judgment in favor of the defendant. On December 15, 1933, the plaintiff filed a notice of appeal. On November 13, 1934, an order was made by the trial court terminating proceedings therein. On January 22, 1935, the defendant served and filed a notice of motion to dismiss the appeal. In that notice it stated its motion would be “ ... made upon the ground that neither a bill of exceptions nor the transcript of the record in said actions has been filed within the time allowed by law and rules of the District Court of Appeal and upon the further grounds that said proceedings on appeal and/or to obtain a transcript on appeal in this action have been terminated by the Superior Court from which said actions are appealed”. In said notice of motion the defendant stated that its motion would be made upon all the records and files in said action and such certificates as it would produce at the hearing. At the same time it served and filed a certified copy of the order terminating proceedings in the trial court, a certified copy of an order denying a motion made under section 473, Code of Civil Procedure, to be relieved from the order terminating proceedings, and it also filed a certificate of the county clerk showing in chronological order the different proceedings had and taken in the trial court and which certificate also showed that on the twenty-second day of January, 1935, there were no proceedings for a bill of exceptions or for a transcript under section 953a pending in the trial court. On February 9, 1935, the plaintiff filed in this court a transcript which on its face purports to be a transcript supporting an appeal from the judgment based on the judgment roll and an uncertified and unauthenticated transcript of the reporter under section 953a, Code of Civil Procedure. The hearing of this motion was had on February 11, 1935. In reply to the showing made by the defendant the plaintiff presented no evidence. However, he contended the filing of the transcript prior to the hearing on the motion to dismiss will defeat the motion. He cites in support of that contention a number of authorities. Some of those authorities were based on a hearing where the motion to dismiss was resisted on a showing that the adverse party was entitled to be relieved of its apparent default by applying [296]