Rattray v. Scudder

BARNARD, P. J. This is an action to obtain a writ of mandate directing the defendant to cancel and set aside an order made on April 10, 1944, revoking a license as real estate broker issued to the plaintiff for the license year 1943-1944. It appears that a petition for the writ was filed on April 20, 1944, a hearing was had early in June, and. on July 17, 1944, judgment was entered directing the issuance of a writ, and for certain costs and disbursements.

On July 21, 1944, the defendant filed a notice of appeal to this court from the whole of said judgment. On August 14, 1944, the plaintiff moved for an order that the appeal taken should not operate as a stay of execution, and the defendant made a motion to retax certain costs. Both of these motions were denied and on August 21,1944, the defendant filed notice of appeal from that portion of the order denying his motion to retax the costs.

On September 8, 1944, the plaintiff filed in this court notice of a motion to dismiss “the appeal in said cause” on the grounds (1) that the appellant has failed to take the necessary steps to procure the filing of a record on appeal as required by rule 5 of the Rules on Appeal and (2) that the matters in controversy in this action and on this appeal have become moot. On the same day a clerk’s certificate was filed which states, among other things, that no notice to prepare a transcript or notice designating papers, records or exhibits has been filed, and that no proceeding for the preparation of a record is pending in the trial court.

On September 21, 1944, the defendant filed in this court notice of a motion to relieve him from default. In the accompanying affidavit it is alleged, among other things, that the original petition for writ of mandate contained a statement that a transcript of the hearing before the Real Estate Commissioner was filed concurrently therewith; that in fact this [125]transcript was not filed until Hay 8, 1944; that it had been previously stipulated that said transcript would be filed as a part of the petition for a writ and that no other evidence would be introduced at the trial; that at the trial the plaintiff introduced this transcript “by reference”; that after appealing from the judgment and from the order refusing to retax the costs counsel for the defendant believed that the record on appeal would be sufficient on the judgment roll alone since this transcript was a part of the pleadings by reference and by stipulation; that appellant was under the belief that the county clerk should transmit the judgment roll as a matter of course and that this transcript was and would be a part of the judgment roll; that counsel then worked assiduously at preparing his brief; that on September 6, 1944, feeling that there was some slight doubt as to whether this transcript was a part of the pleadings in the case the affiant telephoned to the plaintiff’s attorney and requested him to stipulate that this transcript be included in the judgment roll; that the attorney for the plaintiff refused to stipulate but finally said “O.K.”; that on the same day the affiant prepared a stipulation and sent it to plaintiff’s attorney; that on the next day, September 7, 1944, the affiant received through the mail a copy of a notice to dismiss the appeal; that on the next day, September 8, 1944, the affiant received back his stipulation, unexecuted, with a letter of explanation from plaintiff’s attorney; that affiant then went to Bakersfield and, believing that the trial judge was the proper party from whom to obtain relief, made an ex parte application and secured an order directing the county clerk to transmit this transcript along with the judgment roll to this court; that affiant believed that in giving prompt and expeditious notice of appeal, both as to the judgment and as to the denial of his motion to retax costs, sufficient notice had been given to the clerk to bring up the judgment roll and this transcript, which included everything that would be needed on an appeal; and that the plaintiff has suffered no damage or loss by reason of the delay since the license revoked by the license commissioner automatically expired on June 30,1944.