Broderick v. Majestic Ice Cream Co.

THE COURT. A motion of respondents to dismiss the appeal came on regularly for hearing after notice to appellant. The motion was based upon the ground that the appellant abandoned her appeal and did not prepare or cause to be prepared a transcript on appeal.

On August 5,1942, upon respondents’ motion, the trial court ordered the proceedings instituted by appellant terminated. The certificate of the county clerk of San Diego County filed herein shows that on September 18, 1940, appellant filed her notice of appeal and request to the clerk to prepare a transcript; that no transcript under section 953a of the Code of Civil Procedure has been prepared or filed and no bill of exceptions has been settled or filed and that no such proceedings are pending in the trial court. By the affidavit of the official court reporter it appears that at no time “did the plaintiff, Linda Broderick, nor anyone on her behalf, tender to affiant the sum of $200.00 in cash, or any other sum, as a deposit for the preparation of the transcript on appeal in this action, and that no arrangements were ever made with affiant by the said plaintiff or anyone acting for her or on her behalf, for the preparation of the transcript on appeal.” Appellant has not presented any counter-affidavits to the contrary. From the showing made appellant has not complied with the provisions of section 953a of the Code of Civil Procedure and the time within which to perfect the appeal has expired.

In the absence of the proper record, the appeal must be and is dismissed. (H. & J. Mabury Co. v. Bryant, 8 Cal. (2d) 704 [68 P. (2d) 359]; Peter v. Fullen, 35 Cal. App. (2d) 115 [94 P. (2d) 1019].)