Kinkle v. Fruit Growers Supply Co.

SCHOTTKY, J. pro tem. This is a motion to dismiss an appeal upon the ground that appellant has failed to perfect its appeal, that no transcript on appeal has been filed as required by law, and that appellant has not prosecuted its appeal with any diligence whatsoever.

The admitted facts are that notice of appeal was filed on December 12, 1941; notice to prepare transcript was served and filed on December 12, 1941; order requiring reporter to transcribe report of trial was signed, served and filed on December 22, 1941; that satisfactory financial arrangements were made with the reporter by appellant; that on January 12, 1942, the reporter filed an affidavit stating that because of the pressure of other matters, he could not complete the [708]transcript within the required time, and the court made an order extending the reporter’s time for preparing the transcript to March 16, 1942; that on March 14, 1942, a-similar affidavit was filed by the reporter, and the court made a further, order extending the reporter’s time to prepare the transcript to May 16, 1942; that on May 15, 1942, a similar affidavit was filed by the'reporter, and the court made still another order extending the reporter’s time to August 10, 1942; that none of said affidavits or orders was served upon respondent or his attorneys; that no motion to terminate proceedings to obtain the transcript was filed in the trial court.

We believe that under the Rules of the Supreme Court and District Courts of Appeal, the motion to dismiss should be denied. In section 1 of rule 1, it is stated:

“If the transcript for use on appeal is prepared under the. provisions of section 953a of the Code of Civil Procedure and a notice is filed by the appellant requesting a transcript under said section, the time for filing the transcript of the record on appeal shall not begin to run until such transcript is approved and certified as required by law, or until the proceeding' to obtain the same has been terminated in the court below by dismissal or otherwise.”

In section 1 of rule YI it is provided:

“On motion to dismiss an appeal for failure to file the transcript within the prescribed time, there shall be presented the certificate of the clerk of the court below, certifying the names of the attorneys of the respective parties, the nature of the action and the relief demanded by the complaint, the amount and character of the judgment, or order appealed from, the fact and date of the filing of the notice of appeal, the fact and date of filing request to the clerk to prepare a transcript, the fact and date' of the settlement and filing of the bill of exceptions or the certification of the transcript prepared under section' 953a' of the Code of Civil Procedure, if any, and the fact and date of the 'entry of order of termination, if any, by the trial, court of .any proceeding for the settlement of a bill of exceptions or transcript. It shall be incumbent on the party moving to dismiss to show by such certificate or by affidavit that no proceeding, for a bill of. exceptions or transcript under section 953a'is pending in the trial court, and if no such proceeding was "ever instituted-that the time' to- institute the saíne has expired. ’ ’