Yurkas v. O'Neill

THOMPSON, J. This is a motion, under rule 42(a) of Rules on Appeal, to dismiss the appeal for failure of the appellant to either pay the clerk’s estimated cost of preparing the transcript, or to make arrangements with the clerk for the payment thereof, as required by rules 4(c) and 5(c) of said Rules on Appeal. The plaintiff was represented on said motion in this court in proper person. The defendant was represented by his attorney, Peter Mannino.

Plaintiff brought the action against the defendant in Sacramento County Superior Court, for damages resulting from alleged negligence. The cause was tried April 13, 1948. Judgment of nonsuit was rendered against the plaintiff. April 26th, notice of appeal was duly served and filed. On the same day that the notice of appeal was filed, the county clerk gave plaintiff written notice of his estimated cost of preparing the transcript as required by said rule 4, with instructions to deposit said estimated sum with the clerk, or to make arrangements with him, for the payment thereof. The notice of motion to dismiss this appeal, which was served and filed in this court on May 11, 1948, had attached to it the clerk’s certificate containing the statements required by rule 42(a) of Rules on Appeal, and certifying that he had notified plaintiff in writing on April 26th of his estimate of the cost [886]of transcript and request for payment thereof and that “the time for the deposit of said estimated sum . . . has expired and no arrangements have been made by said Rosalie Yurkas, the plaintiff herein, for the payment of said estimated cost. . . .” That certificate is dated May 10, 1948, and was served on the plaintiff the following day.

Rule 5(c) provides, with respect to appellant’s notice to the clerk for preparation of the transcript on appeal to be given “within ten days after filing the notice of appeal,” that:

“The notice given by the appellant under the foregoing provisions of this rule shall not be effective for any purpose unless, within 10 days after notification from the clerk of his estimate of the cost of preparing the transcript . . ., the appellant shall make arrangements with the clerk for the payment thereof.”

The record on this motion is devoid of any showing that the transcript on appeal has ever been prepared or filed, although more than four months have expired since the notice of appeal was filed, or that the appellant has ever endeavored to arrange with the clerk for the cost thereof. (Barry v. Bowdle, 69 Cal.App.2d 721 [160 P.2d 91].)