Williams v. Davis

MOORE, P. J. Plaintiff had sued for a large sum of money. She lost, and on his cross-complaint defendant recovered in excess of $25,000. Judgment was entered in January, 1938. Following a denial of her motion for a new trial she filed her notice of appeal in April, 1938. After the appeal the fortunes of the lawsuit were to be controlled by this court in all respects except one. The superior court by virtue of section 953a, Code of Civil Procedure, had the power to govern the conduct of proceedings to perfect that appeal. It might, on satisfactory showing, extend time for the preparation of the transcript, or for good cause it could terminate such proceedings and thereby prepare the way for a dismissal of the appeal. Such dismissal was not possible so long as the respondent was unable to represent to the appellate court that there was no proceeding pending for the preparation of a transcript.

With varying vicissitudes appellant continued with her labors to obtain a completed transcript. The last extension granted by the court was March 31, 1939. The reporter finally filed a transcript on September 27, 1940. From the first date set for the settlement of the transcript, to wit October 7, 1940, to May 18, 1943, the parties vainly negotiated for a settlement of the transcript. After the latter date appellant caused her motion for a new trial to be heard on October 18, 1943. The basis for that motion was section 953e, Code of Civil Procedure which permits the court to grant a new trial when it is [143]impossible to have a transcription of the phonographic report. Following the denial of the motion for a new trial respondent moved to terminate the proceedings for the preparation of the transcript. The order terminating the proceedings was entered November 26, 1943.

The validity of that order is not open to question under any rule or statute in force at the time the notice of appeal was filed in April, 1938. If there be any doubt of its legality, such doubt must arise out of the new Rules on Appeal adopted by the Judicial Council and approved by the Legislature. They became effective July 1, 1943. Even though they had made no provision for the continued predominance of the statutes and rules existing prior to July, 1943, herein referred to as the old rules there would be some reason for holding that an appeal taken five years prior thereto would be controlled by the rules in force at that remote date. It is unreasonable to think that either the Legislature or the Judicial Council would snatch the control of an actual, specific proceeding from the trial court over which it had presided for five years and transfer it to this court for the purpose of determining a motion to terminate that very proceeding. The superior court has controlled such proceedings since the enactment of the first code of practice some ninety-five years ago. Hence it is rational to conclude that in modifying the procedure on appeals it was the intention of the authors of the new rules to make them applicable to only those appeals filed after July 1, 1943.