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District Court of Appeal, First District, Division 2, California.


Civ. 12141.

Decided: January 11, 1943

Hester W. Webb, of San Francisco, for appellant. Arthur B. Dunne, Elden C. Friel, and Dunne & Dunne, all of San Francisco, for respondents.

This is an appeal from an order denying the plaintiff a new trial and terminating proceedings in the preparation of a transcript on appeal.

Prior to January 12, 1933, Union Indemnity Company, a corporation organized under the laws of the State of Louisiana, was transacting a general insurance business in the State of California. The defendant Edward Brown and Sons, a corporation, was carrying on a general agency insurance business. Under certain written instruments the latter was constituted the agent of the Union Indemnity Company. The transactions involved large sums of money. Thereafter the Union Indemnity Company became insolvent. In an action, No. 240815, the Superior Court of the State of California in and for the City and County of San Francisco, entered its decree that the business of the Union Indemnity Company, in this state, be liquidated by the Insurance Commissioner of the State of California. Thereafter the Insurance Commissioner entered upon the discharge of the trust imposed on him under and by virtue of the terms of said decree. Thereafter and prior to the commencement of this action, A. Caminetti became the duly appointed and acting Insurance Commissioner of the State of California and was substituted in said action. On January 11, 1936, the Insurance Commissioner commenced an action, No. 263383, against the defendants Edward Brown and Sons et al. The complaint in said action was pleaded in five separate counts. Said counts were but different statements of a claim to recover $11,702.29 with interest. Thereafter the defendants appeared and filed an answer. They denied the material averments contained in the plaintiff's complaint and in addition thereto they filed a cross–complaint claiming the sum of $91,743.52. Later the defendants filed an amended cross–complaint. It contained two counts. In those counts the defendants sought to recover five separate sums which they claimed were owing from Union Indemnity Company. The plaintiff answered the amended cross–complaint. Prior to the trial the plaintiff filed an amended complaint and counsel stipulated that the answer to the original complaint should stand as an answer to the amended complaint. The issues presented by said pleadings were heard by the trial court sitting without a jury. The trial court made findings in favor of the defendants which specifically indicated the items allowed and those disallowed. The plaintiff made a motion for a new trial. On the hearing of the motion the trial court reached the conclusion that one item, $15,000, was improperly included in the judgment. Accordingly it made an order modifying its judgment entered November 25, 1939 and it now stands in the sum of $24,267.31. Thereafter the plaintiff served and filed a notice of appeal from the said judgment. The defendants also served and filed a notice of appeal.

The plaintiff's notice of appeal was filed February 16, 1940; the defendants' notice of appeal was filed February 17, 1940. On June 11, 1941 the plaintiff filed a notice of intention to move for an order vacating and setting aside the judgment and granting a new trial. One of the grounds of that motion was “* * * (3) Written notice of appeal and request for the preparation of the transcript in accordance with the provisions of section 953a of the Code of Civil Procedure was filed on February 16, 1940; because of the illness of Harry O. Williams, the official shorthand phonographic reporter who reported all the testimony given during the trial, whose illness has and will hereafter continue to disable and prevent him from making a full, true and correct transcript of the testimony given, and the inability of other reporters to read the shorthand notes of said Harry O. Williams it is impossible to prepare a full, true and correct transcript of said testimony. * * *” On the same day defendants served and filed a notice of motion to terminate proceedings. The plaintiff's motion and the defendants' motion came on for hearing at the same time. Both were supported by affidavits, the material averments of which will hereinafter be noted. On July 19, 1941 the trial court made a finding in effect that the plaintiff had not diligently proceeded to obtain a reporter's transcript and thereupon denied the plaintiff's motion for a new trial. From that order the plaintiff appealed and said appeal is the one that is now before us. The plaintiff states the question involved to be as follows: “Did the trial court err in refusing to grant appellant's motion for a new trial made under section 953e of the Code of Civil Procedure and in ordering termination of proceedings for preparation of the transcript?” We think the trial court did not err.

On February 16, 1940 the plaintiff filed his notice of appeal and request for a transcript. Under the statute, unless the time was extended by order of court, said transcript should have been filed on or before March 7, 1940. On that date the transcript was not filed. If an extension of time was needed the statute (Code Civ.Proc. § 953a) provides that the reporter should file an affidavit with the court and serve the parties at least three days before applying for such order. No such affidavit was made, served, or filed at any time. However an order was made March 7, 1940 purporting to extend the time twenty days. Thereafter fourteen other orders were made. Between the due date and the date of the order at times there was an hiatus during which time there was no protecting order. Between December 2, 1940 and February 3, 1941, there was no order. But on April 7, 1941 an order covering said time was made and filed.

The only excuse tendered is as follows: The attorney for the plaintiff in her affidavit averred that “in March, 1940” she was told by the reporter's typist that Mr. H. O. Williams, the court reporter, was reporting a case, herein called the Pacific States case. When that work commenced, how long it continued, or how long it was expected to take, does not appear. Nor does it appear that Mr. Williams could not have substituted others in his place to report the Pacific States case. “In October, 1940” affiant was advised that Mr. Williams was still reporting said case; “in October, 1940” she was advised Mr. Williams had suffered a severe heart attack; “in February, 1941” she was advised that Mr. Williams was still in the hospital; on April 14, 1941 she was advised Mr. Williams was unable to complete the transcript. Later said attorney learned that the trial of the Pacific States case recessed April 11, 1940 until July 16, 1940. She also learned that in May, 1940 Mr. Williams was busy taking depositions in McDonald v. Bank of America. Down to June 16, 1941 the plaintiff never spoke to the court reporter about the delay. Plaintiff communicated at times with the reporter's typist. What authority the typist had in the premises does not appear. During the same period of time plaintiff never applied to the trial court for any order directing the reporter to file the transcript.

The plaintiff claims that he was bound (1) to file a notice of appeal; (2) to request a transcript; (3) to arrange for compensation of the reporter and nothing more. (Code Civ.Proc. §§ 953a, 953b.) That claim is too narrow. It could have been made with the same force if the delay had been ten years. But such is not the law. Dorcy v. Brodis, 153 Cal. 673, 675, 96 P. 278; Clemmens v. Clemmens, 13 Cal.App.2d 651, 652, 57 P.2d 529. In the case last cited, on page 652 of 13 Cal.App.2d, on page 530 of 57 P.2d, the court said: “Here was a long delay in the proceedings for preparation of the reporter's transcript. The spirit of the law is in favor of early appeals and against delay. We cannot say that in making the order the trial court exceeded the bounds of reason; all the circumstances before it being considered.”

Prior to 1931 the trial court would not have had jurisdiction to grant plaintiff's motion on the grounds stated. Diamond v. Superior Court, 189 Cal. 732, 210 P. 36. In the year mentioned section 953e was enacted. It is as follows: “When it shall be impossible to have the phonographic report of the trial transcribed by a stenographic reporter as provided by section 953a of this code because of the death or other disability of a reporter who participated as a stenographic reporter at the trial, the court or a judge thereof shall have power to set aside and vacate the judgment, order or decree from which an appeal has been or is to be taken and to order a new trial of the action or proceeding.” A similar action was before the court in Moore v. Specialty Oil Tool Co., 128 Cal.App. 662, 18 P.2d 82. In construing said section, on page 665 of 128 Cal.App., on page 83 of 18 P.2d, the court said: “There is no intimation or suggestion that there is imposed upon the court a duty to grant a new trial. The words ‘shall have power’ are not equivalent to ‘must.’ We are of the opinion therefore that the statute under consideration vests in the trial court jurisdiction to entertain a motion for a new trial under the circumstances herein appearing, and a discretion to grant or refuse such motion. Nor is it a violent assumption that the discretion thus conferred is a wide discretion. The granting or denial of motions for new trial generally is a matter in which the trial court is vested with so wide a discretion that its abuse must be made clearly to appear before an appellate court is warranted in disturbing its action. In the instant case the trial court had heard all of the evidence produced during the trial, and upon the evidence thus presented had arrived at a decision. It would be anomalous, at least, to anticipate that the court should arrive at a different result upon a retrial where, so far as appears, the evidence would be identical with that which had theretofore been presented. Under the circumstances disclosed by the record, we are of the opinion that no abuse of discretion was committed by the trial court in denying appellant's motion for a new trial.” In Kroeker v. Jack, 51 Cal.App.2d 272, at page 274, 124 P.2d 619, at page 620, the court said: “There may be an occasional hardship in denying a motion for a new trial in a case such as this. On the other hand, an injustice may easily be worked if the rule were otherwise than to vest a wide discretion in the trial court in passing upon such a motion. Every presumption is in favor of the fairness and regularity of the proceedings in the trial court which led to the judgment. The party in whose favor the judgment is rendered is entitled to the benefit of those presumptions and should not be forced to reestablish his claim unless it is clear that the trial court abused its discretion in denying the motion. Taking the entire record in this proceeding into consideration we do not believe it can be held that the denial of the motion by the trial court was an abuse of discretion.”

The plaintiff attempts to excuse his delay on two grounds. One ground is that Mr. Williams, the court reporter, was busy reporting another action, hereinafter called the Pacific States case. That is not a legal excuse. O'Banion v. California C. P. Growers, 109 Cal.App. 328, 292 P. 975. Furthermore, upon proper demand Mr. Williams should have substituted someone in his place in the Pacific States case and prepared the transcript in this action. The other ground involves the health of Mr. Williams. As early as October, 1940––less than seven months after plaintiff had requested a transcript––the latter was informed that Mr. Williams had suffered a heart attack. For that attack Dr. Robert H. Miles attended him, commencing June 13, 1940 and continuing until the 23d day of June, 1941. In his affidavit made on the date last stated Dr. Miles averred: “In my opinion he has not been able to do any work during the course of his illness, and he is unable at the present time to complete unfinished work.” It thus appears that as early as October, 1940, when the plaintiff's attorney was informed of Mr. Williams' illness further inquiry would have shown the necessity of making the motion which he delayed to make until June, 1941.

In view of the rule that the moving party must act with diligence, when the plaintiff was first informed of the delays of the court reporter he had three remedies. Harris v. Burt, 47 Cal.App. 480, 190 P. 1058. The first was to make a demand upon the reporter to complete and file the transcript; the second was to secure an order of the trial court directing the reporter to prepare and file the transcript; the third was to file a petition for a writ of mandate to compel the reporter to prepare and file the transcript. But in the instant case the plaintiff, the appellant in this action, did not attempt to exercise any one of those remedies.

The plaintiff states that he was “* * * entitled to rely on court orders extending reporter's time to prepare and file transcript.” The answer is he did not do so. The record shows an hiatus on five different occasions. That is, there was at one time no outstanding court order for twenty–two days. Others respectively in length two days, twenty–nine days, sixty–four days, and three days. Furthermore, neither party saw any one of said orders until about the date of plaintiff's motion and neither party knew until that time that said orders were not based on any affidavit whatever.

Again the plaintiff contends that the delay was caused solely by an officer of the court. Of course that is not the fact. When on March 7, 1940 the plaintiff was not served by the reporter with a copy of his affidavit the plaintiff was put on notice of the noncompliance with the provisions of section 953a of the Code of Civil Procedure, and further inquiry would have informed him of the facts. He did nothing to protect himself. He was therefore not without fault. Under those circumstances he may not rely on the derelictions of court officers. 4 C.J.S., Appeal and Error, § 869, p. 1374. Again the plaintiff contends that he was entitled to rely on the representations made by the reporter's transcriber who was employed by him and represented him in this case. We think it is sufficient to state that he made no attempt to introduce any evidence showing the authority of the transcriber.

The plaintiff contends that the trial court, during the trial of the basic action, erred in construing and applying to the facts of the case the provisions of section 2344 of the Civil Code. We find no merit in that contention. That contention was not made on the hearing of plaintiff's motion in the trial court. In support of his motion the plaintiff presented the affidavit of his attorney and he called and examined two witnesses, the assistants of the court reporter. Neither in the affidavit nor in the testimony of those two witnesses does any fact appear which purports to state what occurred on the trial of the basic action. In presenting plaintiff's motion for a new trial the parties stipulated that all the records and papers on file in the basic action should be admitted in evidence. They are contained in the transcript but are not helpful in disposing of the contention we are now discussing for two reasons. In the first place the plaintiff neither quotes nor gives any reference to any passage showing that section 2344 of the Civil Code was involved on said trial. If such passages were contained in said record he should have done so. (Code Civ.Proc. § 953c.) On the record as made a court of review will not consider the point. Town of St. Helena v. Merriam, 171 Cal. 135, 137, 152 P. 299. In the second place we have examined said record and we find nothing which necessarily presents the contention which the plaintiff now makes. As the trial court's ruling was presumptively correct, in support of said ruling we must assume no statute was improperly construed by the trial court.

As recited above, on February 16, 1940 the plaintiff appealed from the judgment rendered November 21, 1939 and on February 17, 1940 the defendants also appealed. Calling attention to those facts the plaintiff contends the defendants waived any objections to the said delays. We think not. The mere fact the defendants took an appeal did not show an intention to waive any right. In the absence of evidence to show such intention there was no waiver. Howell v. Pedersen, 41 Cal.App. 45, 48, 181 P. 674. As each party appealed, each was an actor and each was bound to act with diligence in perfecting the appeal taken by such party. Dorcy v. Brodis, 153 Cal. 673, 675, 96 P. 278. The plaintiff relies on Campbell v. Deville, 163 La. 575, 112 So. 491. But that case was based on a statute of Louisiana that is not similar to the statute above mentioned.

The order appealed from is affirmed.


NOURSE, P. J., and SPENCE, J., concurred.