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NATHANSON v. MURPHY

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

NATHANSON v. MURPHY et al.

Civ. 16160.

Decided: March 25, 1954

William Klein, San Francisco, for appellants. Morgan V. Spicer and H. R. Whiting, San Francisco, for respondent.

Motion to dismiss appeal and a petition to be relieved of default for failure to file transcript in time.

Notice of appeal was filed by appellants in this action on April 17, 1953, request for Reporter's and Clerk's Transcript was filed April 21, 1953, a copy of which latter notice was transmitted by the Clerk of the Court to the Reporter on April 21, 1953, as required by Rules on Appeal, Rule 4(a).

There was filed on May 6, 1953, a waiver of fees by the Reporter, and on May 7, 1953, a directory notice to the Reporter to prepare the Reporter's transcript was filed, pursuant to Rules on Appeal, Rule 4(c).

To date neither the Reporter's nor Clerk's Transcript has been filed.

Rules on Appeal regarding preparation and dismissal: ‘If the appellant shall fail to perform any act necessary to procure the filing of the record or to pay the filing fee within the time allowed therefor or within any valid extension of that time, and such failure is the fault of the appellant and not of any court officer or any other party, the appeal may be dismissed on motion of the respondent or on the reviewing court's own motion.’ Rules on Appeal, Rule 10(a).

The appellants were granted permission by this court on the hearing of the motion to dismiss the appeal to file a petition to be relieved of their default and to file affidavits in support thereof. Said petition and affidavits are now on file and satisfy this court that the failure to prepare and file the transcript in time was due to the inadvertence and default of the Court Reporter rather than that of the appellants.

Under Rule 53(b), Rules on Appeal: ‘The reviewing court for good cause may relieve a party from a default occasioned by any failure to comply with these rules, except the failure to give timely notice of appeal.’ See also Averill v. Lincoln, 24 Cal.2d 761, 151 P.2d 119.

We conclude this is a proper case to grant relief from the default in failing to file the transcript on time on condition, however, that the appellants prepare and file the transcript on appeal within 30 days from the date hereof.

Petition to be relieved of default granted conditionally; motion to dismiss appeal denied.

KAUFMAN, Justice.

NOURSE, P. J., and DOOLING, J., concur.

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