Levin v. Levin

California Court of Appeal May 9, 1944 No. Civ. No. 14443Published

Before: York

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Holding. The court denied the appellant's motion to stay proceedings under the Soldiers' and Sailors' Civil Relief Act and granted the respondent's motion to dismiss the appeal due to the appellant's failure to file the required transcript. The court determined that the appellant's ability to prosecute the appeal was not materially affected by her military service.

Issues

Whether an appellant's military service warrants a stay of appellate proceedings under the Soldiers' and Sailors' Civil Relief Act of 1940.
Whether an appeal should be dismissed for failure to file a transcript as required by the Rules on Appeal.

Disposition. dismissed

Quotations verified verbatim against the opinion

“Under the facts presented by the record before this court, appellant’s ability to conduct her appeal is not materially affected by reason of her military service.”

“appellant Myrtle Levin’s motion for stay of proceedings is denied, and respondent Alexander Levin’s motion to dismiss the appeal is granted.”

YORK, P. J. Defendant Alexander Levin has made a motion in this court to dismiss the appeal of plaintiff Myrtle Levin from an interlocutory judgment of divorce in favor [299]of the latter, on the ground “That no notice to clerk to prepare transcript under section 953a C.C.P. has been filed, and no transcript is on file herein, as required by Rule 5, Subdivision A, of Part 2 of Rules on Appeal of this Honorable Court.” Plaintiff, in opposition to said motion to dismiss, has moved this court “to stay the proceedings herein until such time as appellant can obtain a furlough, or leave of absence, from the United States Marine Corps, upon the grounds as follows: That her financial ability to prosecute this appeal and to pay an alleged community debt, to prevent the sale of household furniture, has been materially affected by her military service, all as shown by the affidavit in support hereof.”

In support of and attached to defendant’s notice of motion to dismiss appeal is the Certificate of the Clerk of the Superior Court of Los Angeles County from which it appears that plaintiff, Myrtle Levin, on December 2, 1942, filed her complaint for divorce on the ground of cruelty, wherein she prayed for an interlocutory decree of divorce, and for all of the community property, attorney’s fees and costs; that on February 9, 1943, defendant husband filed a cross-complaint for divorce alleging extreme cruelty and asked for a fair division of the community property; that on June 25, 1943, an interlocutory decree of divorce was entered which adjudged that plaintiff was entitled to a divorce from defendant and ordered that “the furniture be sold and the proceeds applied on the community debt of $488.00, any balance to be equally divided between plaintiff and defendant.” It also appears from said certificate that notice of entry of judgment was filed and served on defendant’s attorney on July 16, 1943, and on August 26, 1943, plaintiff filed her notice of appeal from the judgment of June 25th. “That no notice of intention to move for a new trial has been filed. That no notice to clerk to prepare transcript under section 953a C.C.P. has been filed, and accordingly there is no transcript on file thereunder.”

Section 953a of the Code of Civil Procedure requires that the notice requesting a transcript of the testimony offered at the trial “must be filed within ten (10) days after the filing of the notice of appeal,” with.the clerk of the court from whose judgment said appeal is taken. Rule 5(a) of Rules on Appeal for the Supreme Court and District Courts of

Levin v. Levin

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