ANDERSON v. ANDERSON (1942)

Motion to dismiss two appeals on the ground that the transcript on appeal in each instance was not filed within the time required by the Rules of the Supreme Court and District Courts of Appeal. One of said appeals was taken from a decree of partition and the other of said appeals was taken from an order of court confirming a sale made by the referee of a portion of the property described in said decree of partition.

No printed transcript of the record on either appeal has been filed with the clerk of this court.

The certificate of the clerk of the trial court shows that on the appeal from the judgment of partition an engrossed bill of exceptions was filed in his office on August 19, 1941. Rule I of this court provides that the printed transcript of the proceeding on appeal in a civil action must be filed, in case proceedings for the settlement of a bill of exceptions are pending, within forty days after the filing of the engrossed bill of exceptions with the clerk of the trial court. As this time had expired before the notice of said motion to dismiss said appeal, the motion must be granted.

Appellant, by the affidavit of her attorney filed in this court at the hearing of said motion, states that there never had been any hearing set, notice given or hearing held to settle said bill of exceptions on the appeal from the judgment of partition, and that in the absence of appellant and her attorney, and without notice to either of them, the trial court undertook to settle said bill of exceptions. It does not appear by said affidavit or otherwise that appellant instituted any proceedings in the trial court under section 473 of the Code of Civil Procedure, or under any other provision of law, to set aside or vacate the order of the trial court settling said bill of exceptions, or made any attempt in the trial court to correct, modify or amend said engrossed bill of exceptions. Had appellant any legal grounds to set aside or modify said engrossed bill of exceptions, application to that end should have been first made to the trial court, and in the event of the refusal of that court to grant the relief sought, its action upon said application would have been subject to review by this court. In Moultrie v. Tarpio, 147 Cal. 376, at page 378, 81 P. 1112, at page 1113, it is stated: ‘Ordinarily, this court would not undertake to determine, on a motion to dismiss an appeal, whether or not a party had so failed to comply with the requirements of the law in regard to the settlement of a bill of exceptions that his pending proceeding for such settlement must ultimately fail, but would leave that question to be determined by the trial judge, subject to review on appeal.’ That case is cited by this court in the case of Dernham v. Bagley, 151 Cal. 216, 218, 90 P. 543, where the language set out above is quoted and approved.

As the engrossed bill of exceptions on the appeal from the judgment of partition was properly filed in the trial court and no printed transcript of the record was filed with the clerk of this court within the time provided by the rules of this court, the motion to dismiss the appeal from the judgment of partition on the grounds stated should be granted.

As to the appeal from the order confirming the sale made by the referee of a portion of the property distributed, the certificate of the clerk of the trial court shows that a proposed bill of exceptions was timely served and filed on July 1, 1941, and that on July 23, 1941, ‘proposed additions and corrections to defendant's bill of exceptions was filed’ by respondent. Undoubtedly, this document was understood by all parties and the trial court as respondent's proposed amendments to appellant's proposed bill of exceptions. On August 4, 1941, a second proposed bill of exceptions was filed by appellant. This latter document was not filed within the time prescribed for the filing of a proposed bill of exceptions, nor was it served on respondent. The certificate of said clerk does not show that there is on file in his office any engrossed bill of exceptions on the appeal from this order or that the trial court has taken any action whatever to settle the first proposed bill of exceptions filed by appellant within the time fixed by the rules of this court.

As near as we can understand from the somewhat confused record before us, consisting of two certificates of the clerk of the trial court and affidavits of the attorneys of the respective parties to these appeals, a proposed bill of exceptions was prepared by appellant to be used on each of the two appeals involved herein and proposed amendments to each of the proposed bills were filed by respondent. Said proposed bills and proposed amendments were all timely filed and served on the attorneys of the opposite party. A hearing was duly set and noticed for the settlement of each of said two matters. At said hearing the trial court settled each of said bills and ordered the attorney for respondent to engross the same. The attorney for respondent complied with this order, and the engrossed bills were filed with the clerk of said court on August 4, 1941. On August 19, 1941, the judge signed the engrossed bill of exceptions on the appeal from the judgment of partition, but for some unexplained reason did not sign the engrossed bill on the appeal from the order confirming the sale of property, and said engrossed bill has never been signed by the trial judge. Appellant has made no effort to have the trial judge sign this engrossed bill. On the other hand, on August 4, 1941, the day the engrossed bills of exceptions were filed by the attorney for respondent, appellant filed the second proposed bill of exceptions on the appeal from the order confirming the property sale. We are warranted in assuming that by filing her second proposed bill of exceptions and by taking no action to have settled her first bill, appellant has abandoned the prior bill of exceptions. As the second bill of exceptions was filed long after the time fixed by the rules of this court for filing the same, it must be regarded as a nullity. Having abandoned her first proposed bill and her second proposed bill having been filed too late, it must be held that there is no proceeding for settlement of a bill of exceptions pending on the appeal from the order confirming the property sale. It follows, therefore, that the motion to dismiss the appeal from said order must be granted.

The motion to dismiss said appeals is granted, and each of said appeals is hereby dismissed.

We think it but proper to call the attention of counsel and of the profession to the provisions of section 3 of rule XX of this court, and particularly to the last sentence of said section, providing that any showing in opposition to a motion noticed for hearing before this court ‘shall be in writing, and, unless the time on the notice of motion has been shortened, shall be served and filed at least ten days before the hearing.’ The purpose and object of this provision of the section is apparent. The practice has become all to prevalent for the opposing attorney, as he did at the hearing of the present motion, to present his opposition to the motion at the time of the hearing of the motion, thus depriving moving counsel and the court of any opportunity to give any advanced consideration to the grounds of opposition. This situation often renders it necessary to delay the decision of the motion and imposes additional labor on the court. This court is in hearty accord with the object and purpose of the rule just stated and is of the opinion that its strict enforcement will contribute materially to the prompt administration of justice, as well as expedite the work of this court.

CURTIS, Justice.

GIBSON, C. J., and SHENK, EDMONDS, HOUSER, CARTER, and TRAYNOR, JJ., concurred.