Pioneer Fruit Co. v. Mulcahy — 58 Cal. App. 388

Majority

p. 388

[Civ. No. 2492.

Third Appellate District.

June 30, 1922.]

PIONEER FRUIT COMPANY (a Corporation), Respondent, v. JAMES MULCAHY, Appellant.

Headnote

[1] Appeal — Failure to File Transcript — Dismissal — Rule 2 or the Supreme Court.'—An appeal will he dismissed on motion, on notice given, where no transcript has ever been filed and the time prescribed by rule 2 of the supreme court for filing of the transcript has passed.

MOTION to dismiss appeal from a judgment of the Superior Court of San Joaquin County. D. M. Young, Judge. Granted.

The facts are stated in the opinion of the court.

G. C. Allen and A. H. Carpenter for Appellant.

Robert H. Schwab for Respondent.

A motion on notice given has been made to dismiss the appeal herein on the ground that no transcript or other record on appeal was filed within the time prescribed by rule 2 of the supreme court (176 Pac. vii). The motion is supported by the certificate of the clerk of

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the superior court certifying the nature of the action and the relief demanded by the complaint, the amount of the judgment appealed from, and a statement that the notice of appeal to this court was filed in the office of said clerk on the twenty-third day of August, 1921. The certificate contains this further statement: “A proposed bill of exceptions to be used on appeal from said judgment was filed in my office on the 11th day of October, 1921; that the above entitled court (the Superior Court) dismissed the proceedings for the settlement of said bill of exceptions on the 8th day of May, 1922; that there is no other proceeding pending for the settlement of the bill of exceptions or for a transcript under Section 953-a of the Code of Civil Procedure of the State of California; that no such proceeding under section 953-a of the Code of Civil Procedure was ever instituted, and the time to institute the same has expired.” (See Mulcahy v. Young etc., ante, p. 382 [ 208 Pac. 321 ].)

Rule 2 of the supreme court reads in part as follows: “The appellant in a civil action shall, within forty days after an appeal is perfected, except as hereinafter stated, serve and file the printed transcript of the record, duly certified to be correct by the attorneys of the respective parties, or by the clerk of the court from which the appeal is taken. If a proceeding for the settlement of a bill of exceptions which may be used in support of such appeal is pending or may still be instituted, the time aforesaid shall not begin to run until the settled and authenticated bill of exceptions has been filed, or the time in which a proceeding for such a bill of exceptions may be instituted has expired, or such proceeding if instituted has been dismissed by the trial court. ...”

Rule 5 of said court (176 Pac. ix), among other things, provides that “if the transcript of the record or appellant’s points and authorities be not filed within the time prescribed, the appeal may be dismissed on motion, on notice given.”

[1] It results from the situation as thus explained that no transcript on appeal in this action has ever been filed in this court. The time having passed for the filing of such a transcript, and none being on file, it is the duty of this

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court to grant the motion to dismiss the appeal, and such is the order.

Burnett, J., and Finch, P. J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 28, 1922.

All the Justices present concurred.

Richards, J., pro tem., and Myers, J., pro tem., were acting.