PEEBLER ET AL v. OLDS ET AL

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

PEEBLER ET AL. v. OLDS ET AL.*

Civ. 14600.

Decided: October 05, 1944

Roland Maxwell, of Pasadena, for plaintiffs and respondents. J. M. Danziger, of Los Angeles, for defendant and appellant B. C. Olds. H. A. Andrews and J. M. Danziger, both of Los Angeles, appellants in pro. per.

Respondent has filed a bifurcated motion to strike from the files of this action the “purported reporter's transcript,” and to dismiss the appeal. The motion to strike is on the grounds that (1) the superior court had no jurisdiction to make the order settling the transcript and (2) the transcript was not prepared at the time or in the manner prescribed by law. This motion is irresistible.

While notice of appeal had been filed January 16, 1943, eleven months later on December 9 the court made an order pursuant to their motion allowing defendants 10 days within which to give the clerk notice to prepare a record on appeal under section 953a, Code Civil Procedure. By virtue of the failure of appellants to give the notice of their request for a transcript within 10 days after filing their notice of appeal they lose their right to proceed with the preparation of the transcript of the evidence in the manner provided by section 953a. To take advantage of appeal by the method prescribed by the cited section it is imperative that the request for a transcript be made within the ten–day period by giving written notice to the clerk. Brown v. Superior Court, 175 Cal. 141, 165 P. 429; Des Granges v. Des Granges, 175 Cal. 67, 165 P. 13; Estate of Keating, 158 Cal. 109, 112, 110 P. 109. Even upon a good showing the trial court has no power to relieve a party of his default after the lapse of six months. Code Civil Proc. secs. 473, 953a.

Inasmuch as the reporter's transcript on file was not prepared in accordance with the statute it is not available for use on appeal. In re Barney, 191 Cal. 18, 22, 214 P. 853.

However, to strike the reporter's transcript would not be an adequate response to the motion. From the commencement of their proceedings to effect an appeal the record indicates only desultory and listless attempts to comply with the statute and orders of the court. They began with the bill of exceptions method and filed a proposed bill on January 21, 1943. Although amendments thereto were approved on February 15, appellants took no steps to have the bill engrossed. For such dereliction on April 9 appellees gave notice of their motion to strike the proposed bill. Appellants then filed a new proposed bill and appellees' motion filed April 9 was denied without prejudice on June 18. On August 20, besides other proceedings, the court denied appellees' motion to strike the proposed bill on the ground of lack of diligence in effecting a settlement. Although the tenth day thereafter was fixed for the presentation of an engrossed bill defendants presented a new proposed bill for engrossment, but it was rejected. At that time appellees filed their written objections to the court's certification of any bill on the grounds that (1) the court is without jurisdiction; (2) a settlement is barred by sections 650 and 1054, Code Civil Procedure; (3) the unreasonable delay in the presentation of the bill. The hearing on these objections was continued to September 13, 1943, at which time a wholly different, further proposed bill was offered for the court's consideration. The court overruled the objections of August 30 and continued the hearing on the settlement of the bill to October 15, 1943, and directed defendants to prepare a new and different bill. Again, on the October date the court continued the settlement of the bill to November 15, but the defendants did not at that time present a bill for settlement. Instead, the court continued the hearing to November 24 when without the consent of plaintiffs the hearing was again continued till December 7, 1943, for the settlement of the bill.

As indicative of the indifference of defendants to an orderly procedure for the settlement of the bill of exceptions one other event will be illuminative. In March 1943 contempt proceedings were instituted against defendant Olds and upon his conviction he petitioned the Supreme Court for a writ of supersedeas. In their answer filed on March 29, 1943, plaintiffs alleged “that defendants have not diligently prosecuted their appeal and the time limit for the presentation of a bill of exceptions for certification having expired, a bill of exception cannot now lawfully be certified herein.” Despite the delays which had consumed eleven months, in the face of the frequent reminders of their lack of diligence, on December 7, 1943, defendants moved the court for an order terminating the proceedings for a bill of exceptions and for an order allowing defendants ten days thereafter within which to give the clerk notice to prepare a record on appeal under section 953a.

In assisting appellants to obtain a record for appeal the trial court should exercise a sound discretion and not be activated by caprice or by an eagerness to please a discouraged litigant. The judgment of a trial court is presumptively a correct decision upon the merits of a controversy and should be allowed to gain a status of finality unless an appeal be perfected or good cause be shown for indulging the losing party in such reasonable delays as will enable him to obtain a review of a meritorious appeal. No good reason appears for the unusual leniency extended by the court to defendants in the repeated extensions of time for filing and settling a proposed bill of exceptions. By the exercise of reasonable diligence the eleven months consumed in assisting appellants to prepare a bill of exceptions for engrossment should easily effectuate a judgment of the appellate court on a case in which the reporter's transcript does not exceed 98 pages. Such indulgence constitutes the hated, traditional “law's delays,” and should never be granted except for those unusual circumstances which would defeat justice but for the court's exercise of a wise discretion. Having thus delayed the final determination of the case by one year's dallying with a proposed bill of exceptions and its several successors, the court abused its discretion by granting appellants time within which to give notice to the clerk to prepare the record on appeal under section 953a, Code Civil Procedure. In addition thereto, more than six months having elapsed since the filing of the notice of appeal, the court had lost jurisdiction.

Finally, after the appeal had been lodged in this court on May 26, 1944, by the filing of both the reporter's and clerk's transcripts no action was taken by appellants to gain a decision here. Forty days elapsed within which neither did they file a brief nor request an extension of time for filing one. Not a word came from appellants until confronted with the motion here under consideration. Such behavior of a party does not entitle him to further favors. In the appellate court the evils of cumulated delays should not be countenanced.

It is ordered that the appeal be, and is, hereby, dismissed.

MOORE, Presiding Justice.

W. J. WOOD and McCOMB, JJ., concur.