Marshallan Manufacturing Co. v. Brack

FOURT, J. Respondent made a motion to dismiss the appeal in this cause. The motion was made upon the ground that appellant did not comply with rule 4b of the Rules on Appeal.

Respondent asserts, and the record indicates that he is correct, that appellant requested the preparation of the reporter’s transcript of the testimony of only some of the witnesses and not of all of the witnesses, and that appellant did not state “the points to be raised by him on the appeal.”

Rule 4b of Rules on Appeal provides insofar as we are here concerned, as follows:

“. . . If the appellant, in his notice to the clerk, states the points to be raised by him on the appeal, he may designate the portions of the oral proceedings to be transcribed, or direct the omission of any portions which he deems unnecessary, and in such event shall be precluded from presenting any grounds for reversal not embraced within the points stated by him, unless the reviewing court on motion shall permit the appellant to present additional errors or grounds of appeal on such terms as it may prescribe.”

Appellant’s counsel admits his failure to state the points to be raised on the appeal and with frankness assumes the entire blame for such omission without reference to any secretarial deficiencies, weighty matters in his office, or a heavy trial schedule. He asks leave to amend so as to designate the points to be raised on the appeal.

Rules on Appeal are essentially to expedite and make for orderly conduct of the work of appellate courts and such rules should be observed, however, it is also true that the policy of our law is to favor hearings on appeal upon their merits when such can be done without violence to the rules. (Lundy v. Lakin, 89 Cal.App.2d 849, 852 [202 P.2d 369] ; Jarkieh v. Badagliacco, 68 Cal.App.2d 426, 431 [156 P.2d 969].)

We are of the opinion that no substantial harm can come [24]from permitting the appellant to amend as heretofore indicated. The respondent, of course, should be permitted to have before this court any or all of the portions of the oral proceedings not designated in the appellant’s notices as provided for in rule 4b and he can make that determination after the appellant makes its declaration of “the points to be raised on the appeal. ’ ’

It is therefore ordered that if appellant; within ten (10) days from and after the filing of this opinion, shall comply with rule 4b, Rules on Appeal, then and in that event, the motion to dismiss the appeal will be denied. Otherwise, the motion to dismiss the appeal will be granted without further hearing.