Clement v. Reclamation Board

THOMPSON, J. This is a motion by defendant, under rule 10 of Rules on Appeal, to dismiss the appeal for failure of the plaintiff to file the transcript on appeal within the time allowed, and a countermotion by appellant to be relieved from default on account of failure of the court reporter and court officers to perform their duties with respect to the [116]settlement of the transcript to which the defendant had offered proposed amendments. The motions were heard upon affidavits filed by the respective parties.

The plaintiff brought suit October 16, 1944, in Colusa County for injunctive relief and damages for flooding his land as a result of alleged negligence of the defendant. The cause was tried by a jury, which returned a verdict for the defendant. Judgment was rendered accordingly on April 11, 1946. A motion for new trial was denied. Notice of appeal was served and filed May 23, 1946. The trial lasted 13 days, and the transcript of evidence contains 1,530 pages. May 28, 1946, plaintiff gave notice to the clerk of the trial court, pursuant to rule 4 (a) of Rules on Appeal, to prepare the reporter’s transcript. The clerk promptly notified the reporter of that request. The estimated reporter’s fees, in the sum of $1,500, were paid within the time prescribed by rule 4 (e). The transcript was not filed with the clerk within 30 days from the time the clerk notified the reporter to prepare the transcript. The reporter agreed to procure the necessary extensions of time for that purpose. The affidavit of appellant indicates that the transcript was filed with the clerk October 19, 1946, which was within 90 days of the maximum time allowed for extensions of time as provided by rule 45 (b). The clerk by mail notified both parties of such original filing. October 23, 1946, the defendant filed with the clerk, pursuant to rule 8, specified proposed amendments to be made to the transcripts as filed. Notice thereof was promptly given by the clerk. The clerk set the hearing for settlement of the transcripts, pursuant to rule 8 (b) for October 28, 1946, and notified the parties thereof.

The proposed amendments to the transcripts were not determined by the trial judge until January 28, 1948, at which time all of defendants’ proposed amendments were allowed. Neither party was present at that time. The court then directed the said corrections to be made by the reporter. The reporter was then absent, having moved to Los Angeles. The corrections were not made until May, 1948, at which time the transcripts, as amended, were filed with the clerk. The transcripts were not filed in this court until July 1, 1948. Respondents’ motion to dismiss the appeal was then filed in this court August 13,1948. That motion was heard on October 4th. Before that hearing, and on October 2d, appellant filed his opening brief, consisting of 88 printed pages, on the merits of the cause.