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District Court of Appeal, First District, Division 1, California.


Civ. 12756.

Decided: December 20, 1944

Emmett R. Burns, James A. Himmel, and James M. Thomas, all of San Francisco, for appellant. O'Connor, Neubarth & Moran and Harold H. Cohn, all of San Francisco, for respondent.

Two notices of appeal by defendant Emma Badagliacco appear in this record, the first, dated October 11, 1943, is from the judgment, and the second, dated April 18, 1944, is from (a) a judgment and order made on the 15th day of March, 1944, terminating proceedings taken by appellant to secure a transcript on appeal, and from (b) the ‘judgment and order made on the 7th day of April, 1944, denying the motion of * * * defendant to vacate and set aside the said order heretofore made on the said 15th day of March, 1944, terminating the said defendant's proceedings to secure said transcript on appeal.’ In each instance a request was made for a transcript of testimony, etc. Neither appeal is on the judgment roll alone.

Plaintiff and defendant are brother and sister and administrator and administratrix respectively of the estate of their deceased mother. It appears that the mother carried a savings account in one bank in her name as trustee for defendant daughter, and in another bank she had two savings accounts in the names of herself and daughter as joint tenants. Plaintiff, claiming to be entitled to one-half of the proceeds of each account, brought this action, and on July 13, 1943, a jury decided in his favor. On October 11, 1943 defendant filed a notice of appeal. On October 20, 1943 by a stipulation subsequently approved by the court, time for giving notice to prepare a transcript on appeal was extended ten days. The purpose of this stipulation was to give the parties an opportunity to adjust their differences and thus dispense with the appeal from the first judgment. On March 15, 1944 plaintiff moved to terminate the proceedings to secure transcript. The motion was accompanied by affidavits. Two days prior to the hearing the funds necessary to prepare the transcript were deposited, but according to the affidavit of the court reporter ‘said funds were deposited with the distinct understanding that preparation of the transcript was not to be commenced until after the determination of the motion to terminate proceedings to secure transcript on appeal.’ A counter-affidavit by the attorney for the defendant was also filed. The court granted plaintiff's motion to terminate proceedings, whereupon defendant filed a ‘notice of motion to vacate and set aside’ the order. Affidavits, counter-affidavits, supplemental affidavits, affidavits that appear to be affidavits in rebuttal and others in surrebuttal upon many minor and trivial subjects were filed in connection with the motion, but these were merely cumulative on the main subject in dispute on the previous motion to terminate proceedings.

‘When an appellant desires to present any point which requires a consideration of the oral proceedings * * * he shall serve on the respondent and file with the clerk of the superior court, within 10 days after filing of the notice of appeal, a notice to prepare a reporter's transcript of the oral proceedings and such oral or written instructions given or refused, as he shall desire copied or transcribed.’ ‘The notice given by the appellant under the foregoing provisions of this rule shall not be effective for any purpose unless, within 10 days after notification from the clerk of his estimate of the cost of preparing the reporter's transcript as designated by the notices of the parties, the appellant shall either deposit with the clerk an amount of cash equal to the estimated cost with directions to apply the same to the fees of the reporter or file with the clerk a waiver of such deposit signed by the reporter.’ (Rules on Appeal, Part II, Rule 4(a) and (c) respectively, adopted by the Judicial Council effective July 1, 1943.) The attorney for the defendant in his affidavit states that he was notified on or about November 12, 1943 of the cost of preparing the transcript; the money was not deposited until four months later. His excuse that he was misled by statements of his opponent is disputed.

The real question involved on the motion to terminate and the motion to vacate was whether the attorney for plaintiff had orally agreed that he would not require the preparation of the transcript on appeal, but would ‘give you all the time you need to have your clerk and reporter's transcript written up after we finally and actually determine that we can go no further to settle this matter.’ The affidavit of the attorney for plaintiff set forth in substance that although the defendant had made many counter-proposals of settlement of the litigation, each and all of them had been promptly rejected and that there were no proposals of settlement under discussion at the time the notice of motion to terminate proceedings to secure the transcript on appeal was served; that at no time, in any shape, form or manner, did the attorney for plaintiff request the attorney for defendant to delay securing the transcript on appeal, but on the contrary the attorney for the defendant constantly advised the attorney for plaintiff that the reason he had not secured the transcript was because he was unable to pay for the same and that he, as said attorney, was under obligation by reason of contract with his client to advance the moneys necessary to finance said appeal.

If the trial court believed the statements above made, that is the end of the matter. In Hohnemann v. Pacific Gas & Electric Co., 31 Cal.App.2d 692, page 694, 88 P.2d 748, 749, this court in considering a similar question said: ‘* * * whether the trial court grants or denies the motion therefor, its decision in the matter will not be disturbed by a reviewing court unless it clearly appears from the record upon which the trial court's decision is based that its discretionary power has been abused; also that it is seldom that the facts of any particular case can be used as a precedent for the determination of another proceeding of like character. (Citing cases.]’ See, also, Beard v. Beard, 16 Cal.2d 645, 107 P.2d 385; Bonfilio v. Ganger, 60 Cal.App.2d 405, 140 P.2d 861; Cooke v. Cooke, 60 Cal.App.2d 451, 140 P.2d 989; Atowich v. Zimmer, 129 Cal.App. 193, 18 P.2d 370; Wood v. Peterson Farms Co., 131 Cal.App. 312, 21 P.2d 468; Nicoll v. Weldon, 130 Cal. 666, 63 P.2d 63; Bodin v. Webb, 17 Cal.App.2d 422, 62 P.2d 155. Subsequent to the trial, that is after a litigant has had his day in court, he should be held to a strict performance under the rules on appeal. Rule 4(c) should be made effective. Lawson v. Guild, 215 Cal. 378, 10 P.2d 459; Bley v. Board of Dental Examiners, 101 Cal.App. 666, 282 P. 19; Ransome-Crummey Co. v. Beggs, 185 Cal. 279, 196 P. 487.

An order terminating proceedings in the preparation of a transcript on appeal is appealable. O'Banion v. California C. P. Growers, 109 Cal.App. 328, 292 P. 975; Howland v. Howland, 11 Cal.2d 20, 77 P.2d 475. An order refusing to vacate a judgment or special order made after final judgment may be appealable. Code Civ.Proc. sec. 963; Estate of Barton, 20 Cal.App.2d 648, 67 P.2d 695. Hearings on the merits are favored by appellate courts Wood v. Peterson Farms Co., 214 Cal. 94, 3 P.2d 922. Upon a proper showing, the Code of Civil Procedure gives the trial court power to relieve a party from default in failing to file a transcript on appeal without time. Manning v. Gavin, 14 Cal.2d 44, 92 P.2d 795.

While an order terminating proceedings in the preparation of a transcript, an order denying a motion to vacate an order made after judgment and similar orders may, under certain circumstances, be appealable (Helbush v. Superior Court, 99 Cal.App. 501, 278 P. 1062; Title Ins. & Trust Co. v. California, etc., Co., 159 Cal. 484, 114 P. 838; California Delta Farms v. Chinese American Farms, 201 Cal. 201, 255 P. 1097; Funk v. Campbell, 15 Cal.2d 250, 100 P.2d 762; Gossman v. Gossman, 52 Cal.App.2d 184, 126 P.2d 178), it was not contemplated that an aggrieved party should have two appeals from a ruling of the court if a second, couched in different language, is in effect merely a repetition of matter upon which the first order was based, and it appears that the appealing party is not prejudiced as the result of mistake, inadvertence, surprise or excusable neglect in the hearing on the first order. Code Civ.Proc. sec. 473. In Lawson v. Guild, supra, it was held that if the grounds of the second appeal were the same as those of the first appeal, the second would not lie. See, also, Barker v. Ackers, 29 Cal.App.2d 162, 84 P.2d 264; Nagelmann v. McIntyre, 27 Cal.App.2d 621, 81 P.2d 466; Neighbours v. Neighbours, 62 Cal.App.2d 840, 145 P.2d 688; Home Owners', etc., Corp. v. Engelbertson, 54 Cal.App.2d 46, 128 P.2d 424; Estate of Richards, 17 Cal.2d 259, 109 P.2d 923; Nuckolls v. Bank of California, 10 Cal.2d 266, 74 P.2d 264, 114 A.L.R. 708; People v. Palmer, 49 Cal.App.2d 579, 122 P.2d 114.

In the present case there is no legal basis for the second motion; it merely called upon the court to repeat or overrule its previous order. It is true that the notice of motion to vacate, etc., set forth that the previous order was the result of the mistake, inadvertence, surprise and excusable neglect of the defendant Emma Badagliacco. However, the mistake, etc., set forth in her affidavit was her reliance upon the attorney for plaintiff, whose alleged conduct caused her to believe that it would not be necessary to prepare the transcript on appeal. This is the precise question which was determined on the motion to terminate proceedings. It is true that the conduct of plaintiff is alleged to have caused the alleged error in granting the first motion. All matters set forth in the affidavits as grounds to set aside that motion were known and available for presentation to the court at the time of the ruling thereon. On the second motion it was stipulated that all affidavits used on the first motion could be used as part of the record on the second. On the hearing of the latter certain affidavits were filed indicating that a motion for continuance on behalf of defendant had been presented at the first hearing. It developed that this had not been a motion for a contnuance but had been a suggestion that the attorney for defendant be permitted to file a reply affidavit. Subsequent events indicate that such affidavit would have been merely cumulative.

It should be noted that on the second hearing a transcript on appeal from the judgment was not offered for filing. The facts in Taft v. Security-First Nat. Bank, 139 Cal.App. 228, 33 P.2d 683, bear quite a resemblance, except as to time intervals, to those herein. A motion to terminate proceedings had been granted, and a motion under sec. 473 to vacate and set aside the previous order had been denied. The court said, pages 232, 233 of 139 Cal.App., page 685 of 33 P.2d: ‘We take it that the request for relief was not only insufficient but that it was, in fact, incidental to and a part of the motion to set aside the order of termination. Under these circumstances, the motion from which the second appeal is take must be considered only as a motion to set aside the prior order, and the usual rule applies that, when an order is appealable, an order denying a motion to set the same aside is not appealable.’ In Merron v. Title Guarantee, etc., Co., 11 Cal.App.2d 565, 566, 567, 54 P.2d 61, it was held that ‘an appeal does not lie from an order denying a motion to vacate a judgment where such motion merely calls upon the court to overrule a former ruling on the same facts.’

In Koshaba v. Koshaba, 51 Cal.App.2d 602, 125 P.2d 535, similar proceedings to the present were had, but there the time for appeal from the order terminating proceedings had elapsed, and the appeal from the order (page 604 of 51 Cal.App.2d, page 536 of 125 P.2d) ‘ostensibly made under section 473 of the Code of Civil Procedure, was nothing more nor less than an attempt by the appellants to secure a second hearing of the motion which had gone against them, and a ‘reversal,’ if possible, in the trial court of the first order, terminating the proceedings, which was itself appealable.'

It is apparent that if appellants are entitled to any relief it must be based on the appeal from the order terminating proceedings. It does not appear that there was error in that proceeding. In the appeal from the judgment and order made on the 7th day of April, 1944, there is no legal basis for the motion which resulted in the making of the order, hence it is not appealable. Any error claimed to have occurred on the latter hearing, such as misconduct of the court, may not be considered.

The appeal from the judgment and order made on March 15, 1944 is affirmed. The appeal from the order made on April 7, 1944, not being an appealable order, is dismissed.

WARD, Justice.

PETERS, P. J., and KNIGHT, J., concur.

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