Babb v. Eistrat

WHITE, P. J. Respondent moves to dismiss the appeal herein on the ground that appellant failed to make timely arrangements with the clerk of the lower court for payment for the clerk’s transcript within the time provided by the Rules on Appeal.

Respondent’s motion to dismiss is supported by a certificate of the clerk of the superior court which shows that on August 2, 1954, plaintiff (respondent herein), filed a complaint; that the relief prayed for was a judgment against the defendant (appellant herein) for the sum of $2,500; that on March 21, 1955, appellant herein filed his fourth amended cross-complaint praying for damages in the amount of $4,100 as costs and expenses alleged in his first and second causes of action, together with the sum of “more than $1.00” as damages for the libels alleged in his third cause of action.

On December 31, 1955, judgment was entered ordering that plaintiff (respondent herein) take nothing by reason of any matters alleged in his complaint and that defendant (appellant herein) have judgment against plaintiff thereon; that cross-complainant (appellant) take nothing by reason of any matters alleged in his fourth amended cross-complaint, and that cross-defendant (respondent) have judgment against cross-complainant thereon. It was further ordered that each party to this action bear his own costs.

Notice of entry of judgment was filed January 3,. 1956, and was served by mail, January 13, 1956, on plaintiff, Jerrell Babb, appearing in propria persona.

Notice of intention to move for new trial on cross-complaint was filed February 15, 1956; there is no entry on the register of actions of any ruling on said motion. ;

[254]Notice of appeal from said judgment, on behalf of defendant (appellant herein), was filed February 28, 1956.

Notice to clerk to prepare transcript, and notice to order reporter’s transcript was filed March 9, 1956. Pursuant to rule 4(a) of Rules on Appeal, a copy of the aforesaid notice was mailed March 19, 1956, to court reporters Ruth Lipton and John S. Murdock.

In accordance with the provisions of rule 5 of the Rules on Appeal adopted by the Judicial Council, a notice by the clerk of the superior court designating the estimated cost for the preparation of the clerk’s transcript was mailed March 28, 1956, to defendant (appellant) appearing in propria persona. As of October 8, 1956, the date of the clerk’s certificate, no arrangement had been made with the clerk for the payment thereof.