Gilmore v. Placer County Bank

THOMPSON, J. The defendant and cross-complainant, Consolidated Exploration and Mining Company, seeks to be relieved from default in failing to perfect the appeal by preparation and filing of the transcript within the time allowed by rule 10 of Rules on Appeal, or at all, and to reinstate the appeal. Upon notice duly served by plaintiff, at which hearing the defendants failed to appear, this court dismissed the appeal on November 13, 1948, under rule 41(c) of Rules on Appeal on the ground that the appeal was “deemed abandoned.” This motion for relief from default and reinstatement of the appeal was heard on affidavits of respective parties. The affidavits are conflicting.

The last day for regularly filing a notice of appeal in this case under section 939 of the Code of Civil Procedure was August 29, 1948, but since that was Sunday, we assume the notice, which was filed the following day, was within the statutory time. (Code Civ. Proc., § 12a.) No transcript on appeal has been filed. The gist of the averments contained in the affidavits of Spencer and Adamson, filed on this hearing, in excuse for failing to file the transcript within the time allowed by law, is that the latter took a letter addressed to Spencer and signed by Buel R. Wood of Long Beach, California, to the County Clerk of Placer County, where the ease was tried, on September 8, 1948, and requested the clerk to prepare a transcript containing the “documents set out in said letter” and that affiant then “had sufficient money wherewith to pay any charge or demand” therefor, but that the clerk “refused to prepare the papers designated in said letter and gave as the reason that there was a dispute with reference as to the filing of said Notice of Appeal. ’ ’ The motion to dismiss the appeal was thereafter duly noticed and made in this court. The affidavit of Spencer acknowledges the service of that notice on appellants. They failed to appear at the hearing, as we have previously stated, and the appeal was dismissed.

The Clerk of Placer County filed a counteraffidavit on this hearing, specifically denying that said Adamson or any other person in behalf of the appellants, or at all, interviewed her on September 8, 1948, or at any other time, regarding the appeal, or requested her to have the transcript prepared, or to furnish an estimate of the costs therefor. She avers that at no time did the appellants or anyone in their behalf request her in writing or otherwise to prepare said transcript or to [442]estimate the costs thereof. She avers that at no time did she see said letter or talk with Adamson or any other person regarding the preparation of the transcript and that she never told him or any other person that there was a dispute regarding the validity of the notice of appeal.