Gates v. Green — 148 Cal. 728

Majority

p. 728

[L. A. No. 1739.

In Bank.

February 21, 1906.]

W. W. GATES, Respondent, v. G. R. GREEN et al., Appellants.

Headnote

Appeal—Motion for Transfer to District Court of Appeal—Reasons for Speedy Hearing.—In a ease falling within the appellate jurisdiction of this court, under the constitution as amended in 1904, while this court may, of its own motion, to facilitate its business, transfer it to the district court of appeal, considerations of the convenience of the parties or the necessity of a speedy decision of the ease play no part in the matter; and the reasons assigned for a motion of the respondent for such transfer, on the ground of the necessity of a speedy hearing to preserve his rights to the fruits of his judgment, as against a frivolous appeal, are material only upon the question as to whether the appeal should be advanced for hearing, and constitute no ground for an order of transfer.

MOTION to transfer case to the District Court of Appeal, appealed to this Court from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Waldo M. York, Judge.

The facts are stated in the opinion of the court.

Will D. Gould, and E. C. Oggel, for Appellants.

Flint & Barker, Charles Shurtliff, and Baker & Bowen, for Respondent.

This is a motion for an order transferring the above-entitled cause from this court, where it is now

p. 729

regularly pending on appeal from a judgment and an order denying a motion for a new trial, to the district court of appeal of the second district. The grounds of the motion are stated as follows in the notice of motion, viz.: ‘ ‘ Said motion will be made on the grounds that, on account of the character of the action and of the property decreed to be sold therein, the delay necessary for a decision in this court would cause great and irreparable loss and injury to the plaintiff and respondent herein; that a speedy hearing of the appeal is necessary in order to preserve the rights of said plaintiff and respondent to the fruits of his judgment if the same be affirmed; and that the appeal herein is frivolous and taken for the purposes of delay.”

The case is one which, under the provisions of the constitution as amended in 1904, falls within the appellate jurisdiction of this court. While this court may, on its own motion, order any such cause pending here to be transferred to a district court of appeal, such orders are made solely for the purpose of facilitating the business of this court, with a view to so utilize all of the appellate courts as to speedily enable those courts, working with this court, to clear the calendar of this court of its accumulated business, and considerations of the convenience of the parties to or the necessities of the speedy decision in any particular case play no part in the matter of such assignments. Such reasons as are advanced for the transfer in this case are material only upon the question as to whether the appeal should be advanced for hearing in whatever court it may be pending, and constitute no ground for an order of transfer.

The motion for an order of transfer is denied.