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


Cr. 1997.

Decided: January 11, 1938

Gladstein, Grossman & Margolis, of San Francisco, for appellants. U. S. Webb, Atty. Gen., and Seibert L Sefton, Deputy Atty. Gen., for respondent.

Respondent has moved to dismiss this appeal upon the ground that appellants have failed to comply with the provisions of rule II, section 7, of the Rules of the Supreme Court and District Courts of Appeal.

Appellants were sentenced on October 26, 1937, and thereupon gave oral notice of appeal. The clerk's certificate, made on November 7, 1937, shows that up to that time no application had been filed as provided in the above–mentioned rule.

Said rule requires that “the appellant, must, within five days after giving notice of appeal, file with the clerk and present an application to the trial court, stating in general terms the grounds of appeal and the points upon which the appellant relies, and designate what portions of the phonographic reporter's notes it will be necessary to have transcribed to fairly present the points relied upon. If such application is not filed within said time, the appeal shall be dismissed. * * *”

The authorities hold that the provisions of the rule are mandatory and that “where the defendant fails to conform with this rule * * * the appellate court is without jurisdiction to consider his appeal.” People v. Lewis, 219 Cal. 410, 414, 27 P.2d 73, 74; People v. Nichols, 114 Cal.App. 136, 137, 299 P. 752; People v. Schroeder, 112 Cal.App. 550, 552, 297 P. 105. It is further held that an appellant, who fails to file the application within the time prescribed in the rule, may not obtain relief under the provisions of section 473 of the Code of Civil Procedure, as amended by St.1933, p. 1851, § 34. Gonzales v. Superior Court, 3 Cal.2d 260, 44 P.2d 320.

The appeal is dismissed.

SPENCE, Justice.

We concur: NOURSE, P. J.; STURTEVANT, J.

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