Thornburg v. Rais

DRAPEAU, J. This is a motion to dismiss an appeal from a minute order appointing a receiver made on November 17, 1949, and entered on November 30, 1949. The motion is supported by a certificate of the clerk of the superior court dated August 30, 1950. Such certificate conforms to rule 42 of the Rules on Appeal and recites that complaint for declaratory relief, dissolution of joint venture and partition was filed March 9, 1949. After fully describing the nature of the action, the certificate further recites that the minute order of November 17, 1949, appoints one Walter H. Robinson as receiver in the within entitled action; that notice of appeal therefrom was filed by defendants in the Supreme Court on November 18th; that on November 28th, defendants’ counsel filed with the clerk of the lower court a request for clerk’s and reporter’s transcripts; that on February 1, 1950, a notice by said clerk showing the estimated cost for preparation of reporter’s transcript was mailed to defendants’ counsel (rule 4c of Rules on Appeal); that likewise on March 8, 1950, said [736]clerk mailed to such attorney a notice of the estimated cost for the clerk’s transcript (rule 5 of said rules).

By its order the lower court extended the time to May 2, 1950, within which to make deposit with the clerk for preparation of the record on appeal. That up to August 30, 1950, no arrangement had been made with said clerk for payment of these transcripts; hence no transcript has been certified or filed.

The instant motion to dismiss was served on appellants on August 31, 1950, noticed to be heard on September 27, 1950, in the Supreme Court. Subsequently, the matter was transferred to this court whereupon an amended notice was served on appellants on September 29th, noticed to be heard on October 24, 1950.

On October 19, 1950, appellants Rais served and filed in this court their motion under section 473, Code of Civil Procedure, and rule 53(b) of the Rules on Appeal, for relief from default in preparing and filing the record on appeal; and that they be given additional time in which to have such record prepared and filed. They further move this court for an order that they “be not required to furnish a separate reporter’s transcript for use in support of the above mentioned appeal,” but that such appeal be heard on the reporter’s transcript now being prepared in connection with pending appeals from the judgment on the merits entered June 5, 1950, in the instant litigation, as well as from judgments in two other cases tried jointly therewith.