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Chapuis v. Pesante

41 Cal. App. 688 Court First Appellate District, Division Two.— Decision date 1919-06-21 Docket Civ. No. 2787 English

Delivered by LANGDON, P. J.

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p. 688
[Civ. No. 2787.
First Appellate District, Division Two.—
June 21, 1919.]
MARIE CHAPUIS, Appellant, v. PETER PESANTE , Respondent.

Headnote

HI Appeal—Alternative Method—-Notice to Prepare Transcript— Amendment op Notice op Appeal.—Where a person, intending to perfect her appeal in accordance with the provisions of section 953a of the Code of Civil Procedure, within the required time files with the clerk her notice of appeal in accordance with the requirement's of section 941b of the Code of Civil Procedure, but neglects, to file, within the required time, the notice to the clerk requesting the transcript of the testimony, etc., she may not thereafter amend her notice of appeal so that it will embody; the notice to the clerk requesting the transcript. ¡
APPEAL from an order of the Superior Court of Monterey County denying a motion to amend notice of -appeal. J. A. Bardin, Judge. Affirmed.
The facts are stated in the opinion of the court.
Brun, Fairchild & Shields for Appellant.
Zabala & Sargent for Respondent.

This is an appeal from an order of the superior court for the county of Monterey denying plaintiff’s motion to amend her notice of appeal. Judgment was entered for the defendant on December 11, 1917. A notice of appeal was filed with the clerk on January 3, 1918. It appears that the plaintiff and appellant intended to perfect her appeal in accordance with the provisions of section 953a of the Code of Civil Procedure, but neglected to file, within the required time, the notice to the clerk requesting the transcript of the testimony, etc., as required by that section. Appellant contends that she should have been permitted to amend her notice of appeal só that it would embody this notice to the clerk requesting the transcript.

[1] We cannot see how the motion of the plaintiff could have been granted. The notice of appeal in the record conforms precisely to the requirements of section 941b of the Code of Civil Procedure, and required no amendment

p. 689
whatsoever. It could not he amended to include something entirely disconnected from it. It has been decided in the case of Lang v. Lilley and Thurston Co., 161 Cal. 295 , [ 119 Pac. 100 ], that the notice of appeal is not connected with sections 953a, 953b, or 953c of the Code of Civil Procedure, and that these sections are entirely independent of sections 941a, 941b, and 941c of the Code of Civil Procedure. (See, also, opinion of supreme court upon denying rehearing in Smith v. Jaccard, 20 Cal. App. 280 , 287, [ 128 Pac. 1023 , 1026]; Garner v. Meizel, 22 Cal. App. 256 , 257, [ 133 Pac. 1165 ].)

As pointed out by the respondent, the affidavit filed by the plaintiff in support of her motion does not relate to reasons for amending the notice of appeal, but is merely an explanation of why a request to the clerk for the transcript was not filed in time.

The order appealed from is affirmed.

Haven, J., and Brittain, J., concurred.

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