Brock v. Southern Pacific Co.

NOURSE, P. J. Two motions are presented—one by respondents to dismiss the appeal, the other by appellant to be relieved from his default.

Plaintiff brought two actions against the corporation for personal injuries and against the respondent physicians for alleged malpractice. The first action was filed on September 25, 1940, the second on August 30, 1941. The two actions were consolidated for trial, and on August 20,1945, they went to trial to a jury as one suit for damages. On September 5, 1945, the jury returned a verdict for all defendants. The plaintiff appeared in propria persona and, upon a showing in pauperis, was permitted to conduct the trial at the expense of the county.

On September 11, 1945, notice of entry of judgment was given and in due time plaintiff gave notice of intention to move for a new trial and notice to set aside the verdict. These motions were denied and on October 15,1945, plaintiff filed his notice of appeal. This was followed on October 25 with plaintiff’s “Notice to Clerk to Prepare Transcript and Notice Designating Papers and Records.” This notice to the clerk requested a complete transcript of all the proceedings including the “whole reporter’s transcript” of the testimony of designated witnesses, all the instructions to the jury “from the defendants’ side of the case” and “a whole complete record of trial.” The notice was obviously given under rules 4(a) and 5(a) of the Rules on Appeal. On October 29th there was mailed to plaintiff “Clerk’s Estimate of Costs of Preparing Transcript on Appeal.”

Plaintiff failed to deposit with the clerk a sum equal to the estimated costs or to procure a waiver from the reporter as provided in rule 4(e) and this failure occurred after his motion to be permitted to prosecute the appeal in forma pauperis had been denied on October 10th. On November 5, 1945, and December 3, 1945, plaintiff procured successive orders of the superior court extending his time 30 days each “to prepare and file transcript and statements on appeal” from the judgment, the order denying a new trial, and the order denying a transcript at county cost. On January 3,

1946, February 1st and February 28th plaintiff filed stipula[808]tions from respondents extending Ms time for the same purpose to March 15, 1946. On March 15th plaintiff filed a new notice “of Election to Proceed by Settled Statement" in accordance with rule 7(b), and on March 15th procured an order of the superior court granting him 30 days to Prepare and file his Partial Transcript and Statement on Appeal." In these proceedings plaintiff was represented by counsel.