REES v. ROBERTS (1937)

The motion to dismiss the appeal taken in this case is supported by the certificate of the county clerk of the county wherein the action was tried and by the affidavit of the moving party. From these documents it appears that no proceedings for a settlement of the bill of exceptions or of a transcript on appeal are pending in the trial court and that no notice for the preparation of a transcript in accordance with the provisions of section 953a of the Code of Civil Procedure has been filed. It also appears that more than two years have elapsed since the filing of the notice of appeal and it is therefore apparent that the statutory time within which a record on appeal may be prepared and filed under either method of appeal allowed by our law has expired. It further appears from the affidavit of the party making this motion that after the rendition of judgment in favor of the plaintiff in the action a writ of execution issued for the purpose of enforcing the judgment and that said writ was levied upon an interest in certain real property, which interest was thereafter sold by the sheriff under said writ of execution to the plaintiff and certificate of sale was executed in plaintiff's favor, and that thereafter the said certificate of sale was duly assigned to William J. Roberts who makes this motion for dismissal and that no redemption having been made within the time provided by statute a sheriff's deed was executed to said William J. Roberts, as grantee.

From the above–recited facts it is apparent that the motion for dismissal of the appeal is in order and should be granted. Union Trust Company v. Novotny, 125 Cal.App. 417, 418, 13 P.2d 974; Stewart v. Marple, 126 Cal.App. 771, 772, 15 P.2d 202. The order for dismissal of the appeal is made by this court in which the appeal is pending on its own motion. Section 1, rule V, Rules for the Supreme Court and District Courts of Appeal.

The appeal is dismissed.

JENNINGS, Justice.

We concur: BARNARD, P. J.; MARKS, J.