Dr. Miles California Co. v. Bronstone

BARNARD, P. J. This is an appeal from an order granting a motion to terminate proceedings for the preparation and certification of a reporter’s transcript.

On September 2, 1939, a judgment was entered against the defendant. On November 4, 1939, a motion for a new trial [722]was denied. On November 9, 1939, a notice of entry of the judgment of September 2, 1939, was served on the defendant. No notice of the ruling on the motion for a new trial was ever served on the defendant, and there was no waiver thereof as provided for in section 953d. (All references to code sections herein are to the Code of Civil Procedure.) On September 10, 1939, the defendant filed both a notice of appeal from the judgment and a request for a reporter’s transcript pursuant to section 953a.

At the time this request for a transcript was filed no undertaking was filed in accordance with section 953b, and the defendant had made no personal arrangement with the stenographic reporter for his compensation. Nothing was done by the defendant in furtherance of the appeal until shortly after July 1, 1940, when one of his attorneys requested the reporter to prepare the transcript and to keep secret the fact that the same had been ordered and was being prepared. The transcript was prepared and filed by the reporter with the clerk on July 24, 1940. Before the date fixed for the settlement of said transcript the plaintiff served and filed notice of a motion for an order terminating the proceedings for the preparation of a transcript, on the ground that the defendant had not proceeded with due diligence. After - a hearing, this motion was granted and an order entered terminating the proceedings. This appeal followed.

The only question here involved is whether the trial court erred in granting this motion under these circumstances. The appellant disavows any intention of relying upon diligence on his part. He relies solely on the fact that no notice of the denial of the motion for a new trial was served upon him, and contends that under sections 953a and 953d, the failure to serve such a notice prevented the running of any time limits against him and deprived the court of any power to terminate the proceedings.

The appellant relies on Kling v. Kimball Pump Co., Inc., 115 Cal. App. 517 [1 Pac. (2d) 998]; Rainey v. Crowder, 131 Cal. App. 562 [21 Pac. (2d) 593] ; Benson v. Gardner, 14 Cal. (2d) 526 [95 Pac. (2d) 136], and Savage v. Superior Court, 36 Cal. App. (2d) 521 [97 Pac. (2d) 990]. These were cases where no request for a transcript had been filed, and in such cases it has been uniformly held that the time within which a transcript may be requested does not expire