Amoruso v. Carley

PEEK, J. This is a motion to dismiss plaintiff’s appeal from a judgment which was entered on September 8, 1947, and from the order denying plaintiff’s motion for a new trial filed on November 10, 1947. The motion is predicated on rules 4(d) and 10(a) of Rules on Appeal, and is supported by the affidavit of one of the attorneys for respondent together with the certificate of the clerk of the superior court under rule 42.

From the affidavits on file herein and from the clerk’s certificate it appears that the complaint, which was for specific performance of a contract of sale of real property, was filed on December 18,1946, and that the defendants answered denying the material allegations thereof and by way of cross-complaint prayed that their title be quieted as against plaintiff’s claim. The judgment directing that plaintiff take nothing and that defendants’ title be quieted upon condition that defendants reimburse plaintiff for certain sums expended for payment of taxes, was filed on September 8, 1947, and the order denying plaintiff’s motion for a new trial was entered on November 10, 1947. On December 4, 1947, the notice of appeal was filed by plaintiff, and on the same day there also was filed a notice to the clerk to prepare the transcript on appeal. No order extending the time for preparation of the record was filed nor was the record filed as of the date of the certificate, to wit: June 4, 1948. Also the estimated cost of the reporter’s transcript had not been deposited nor had the reporter in writing waived the same as provided in said rules.

Plaintiff’s opening brief was filed on September 1, 1948, and on September 2, plaintiff’s counsel under rule 53(b) filed his application for relief from default as charged by defendants. Said application does not deny the facts constituting the default under the provisions of rules 4(d) and 10(a) as set forth in respondents’ motion but in mitigation and excuse thereof avers that the only notice he or his client [121]ever received concerning the cost of preparation of the reporter’s transcript was that contained in a letter from the clerk of the court which, in addition to informing him of the cost of the clerk’s transcript, stated that the “cost of the Reporter’s Transcript on Appeal will be given to you later by the Court Reporter”; that appellant promptly paid the cost of the clerk’s transcript and has at all times been ready, willing and able to pay the cost of said reporter’s transcript; that any omission in the compliance with said rules was not due to appellant; that the case was reported by two separate reporters and bears two certificates, one dated May 4, 1948, and one dated June 7, 1948; that he is informed that said transcript was actually prepared and ready for filing on May 4, 1948, or approximately one month prior to the filing of respondents’ motion to dismiss, but that he was not informed of such fact by the reporter; that he inquired from time to time of the reporter concerning the progress of the preparation of the transcript and whether an extension had been obtained in accordance with the rules, to which inquiry the reporter always replied that he had obtained all necessary orders extending the time for filing, and that the failure to comply with rules 4(d) and 10(a) was not the fault of the appellant.