Harrup v. Baker

JENNINGS, J. This motion by respondent to dismiss the appeal herein for failure of appellant to file a transcript on appeal within the time required by law is supported by the certificate of the county clerk of the county wherein the action was tried and by an affidavit of counsel for respondent. From these documents it appears that a judgment was entered in respondent’s favor on April 2, 1937, and that on April 10, 1937, notice of appeal was given by appellant who, on the same date, filed with the county clerk a notice requesting the preparation of a transcript on appeal in accordance with the provisions of section 953a of the Code of Civil Procedure. It further appears that on April 13,1937, the county clerk advised appellant that the estimated expense of preparing a clerk’s transcript amounted to $12, but that said [177]sum has never been paid, for which reason the clerk's transcript to be used on the appeal has not been prepared.

No appearance was made by appellant at the time appointed for hearing this motion and no opposition to the granting of the motion has been offered. Section 953b of the Code of Civil Procedure required appellant, at the time she gave notice requesting preparation of a transcript, to file an undertaking whereby payment of the expense to be incurred in the preparation of such transcript would be guaranteed. This was not done and apparently no effort was made to comply with the provisions of the last-mentioned section of the code after receipt by appellant of the clerk’s statement of the estimated cost of preparing the clerk’s transcript. The time for filing a record on appeal and appellant's points and authorities, including any extensions that were within the power of the trial court to grant on any possible motion for a new trial has expired and no excuse, reasonable or otherwise, for appellant's failure to have perfected her appeal has been shown. Respondent’s motion is therefore in order and must be granted. (Hussong v. Byers, 104 Cal. App. 326 [285 Pac. 888].)

The motion is granted and the appeal taken from the judgment herein is dismissed.

Barnard, P. J., and Harks, J., concurred.