SHIELDS v. JAY (1940)

I dissent from the order granting respondents' motion to dismiss the appeal in this case, as there is absolutely no basis for the granting of such motion.

The record shows that notice of the order denying the motion for a new trial was served on December 19, 1939, and notice of appeal and notice to prepare transcript, pursuant to the provisions of section 953a, Code of Civil Procedure, were filed on January 17, 1940. Thereafter the clerk's transcript was prepared and filed on February 13, 1940. No reporter's transcript has yet been filed, and no proceedings have been instituted for termination of proceedings for the preparation of a record in the trial court. The foregoing facts appear from a certificate of the clerk of the trial court presented to this court as the basis for this motion.

In view of the foregoing facts, the order granting respondents' motion to dismiss the appeal is in direct violation of rule I of the rules of this court. Under this rule it has been repeatedly held that a motion to dismiss an appeal for failure to file a transcript on appeal to be prepared pursuant to the provisions of section 953a, Code of Civil Procedure, will not be entertained unless and until an order has been granted by the trial court terminating the proceedings instituted to obtain such transcript.

The fact that the notice to prepare transcript was filed more than ten days after notice of the order denying the motion for a new trial does not change the situation, as the filing of a notice to prepare transcript pursuant to the provisions of section 953a, Code of Civil Procedure, is directory only, and if such transcript is thereafter prepared, approved by the trial judge and filed, the failure to file such notice within the time specified in said section will be disregarded. Weaver v. Shell Oil Company, 124 Cal.App. 233, 12 P.2d 167; Title Guarantee & Trust Company v. Lester, 216 Cal. 372, 14 P.2d 297; Rubin v. Platt Music Company, 79 Cal.App. 756, 251 P. 243; Vicino v. Amador, 71 Cal.App. 604, 236 P. 369; Tobin Grocery Co. v. Spry, 201 Cal. 152, 255 P. 791; Stenzel v. Kronick, 201 Cal. 26, 255 P. 199.

The motion to dismiss the appeal in this case should therefore be denied.

CARTER, Justice.