Smith v. Title Insurance & Trust Co.

Respondents on February 9, 1925, served and filed notice of motion to dismiss the appeal “upon the ground that neither the transcript on appeal nor appellant’s opening brief” were served or filed within the time prescribed by law and the rules of the court. The appeal is from a judgment entered after the court had sustained a demurrer to the third amended complaint, in an action to recover on a money demand against a decedent’s estate. As it appeared from the clerk’s certificate that the appeal should have been made to the supreme court, the same was transferred to the supreme court; whereupon the supreme court made its order retransferring the cause to this court. Thereafter the motion to dismiss was brought on for hear

Notice of appeal from the judgment was filed in the superior court on the twenty-seventh day of September, 1924. Therefore the time for filing transcript expired on November 6, 1924.

The motion is based upon the certificate of the county clerk and upon an affidavit of Elias V. Rosenkranz, attorney for respondent. In this affidavit it was stated that appellant served on defendants his transcript on appeal on December 12, 1924, and deposited said transcript with the clerk of this court on the seventeenth day of January, 1925, but down to and including February 9, 1925, had not paid the filing fee therefor, and the transcript remained unfiled; that as early as the eighth day of December, 1924, affiant had informed the attorney for appellant that he would move to dismiss the appeal “unless the transcript as corrected is served upon me within the next few days”; that on the thirtieth day of January, affiant addressed a letter to plaintiff’s attorney stating that unless the opening brief was served and filed within the next week, he would make a motion to dismiss the appeal.

Affidavits in opposition to the motion were made by Augustus Tilden, one of the attorneys for appellant, and by R. M. Ferguson. Tilden stated that “seasonably after the perfecting of the appeal” he made an agreement with a printing company which agreed to print and file the transcript in due time; that it had in its employ a Mr. Ferguson who claimed to be qualified to superintend the printing and filing of the transcript according to the rules, and affiant relied upon him so to do; that on the day when the filing was due, Mr. Ferguson reported to affiant that the transcript was not ready for filing; that affiant instructed Ferguson to procure an extension from Rosenkranz; that later on the same day Ferguson reported to affiant that Rosenkranz had granted such extension on certain conditions as to the contents of the transcript; that affiant agreed to these conditions which increased the size of the transcript by about eighty-three pages; that the extension granted was not in writing and not definite as to time; that pending

From a counter-affidavit of Mr. Rosenkranz, the following appears: That on about the fifteenth day of November, Ferguson did inform affiant of his employment to print the transcript on appeal, and asked for an extension of time for the service and filing-thereof; that affiant told Ferguson that he was willing to wait for several days upon the printer for the preparation of the transcript, and did request that certain pleadings be included in the transcript; that Ferguson agreed to have the transcript printed and served and filed within the next few days; that about November 20th, the transcript was served upon affiant by the printer, and that the same contained a number of errors; that on November 22d affiant addressed a letter to Tilden requesting the correction of said errors and a reserviee of the same as corrected and insisted that the matter be taken care of

The fee for filing transcript was not tendered to the clerk by appellant until the twenty-first day of February. Filing has been withheld to await disposition of this motion.

Appellant contends that he should be relieved from the consequences of his delay in filing transcript, and that he should have the benefit of the principle recognized by section 473 of the Code of Civil Procedure, which provides that the court may, upon such terms as may be just, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, where the case is appropriate for such relief; and that in a case where such relief would be granted directly on motion, the court should refuse to dismiss the appeal. Appellant refers to Chapman v. Bank, 88 Cal. 419 [ 26 Pac. 608 ], and Barbour v. Flick, 121 Cal. 425 [ 53 Pac. 927 ], as cases in which the stated principle was applied in the denial of motions to dismiss appeals. In Chapman v. Bank the delay in filing transcript was only ten days beyond the time limited by the rules, and had been occasioned by the fact that the attorney for appellant had been called out of the state by reason of the illness of his mother. The court held that appellant should be relieved from the consequences of his delay. In Barbour v. Flick, the motion was based upon a delay in filing brief, which delay had been caused by excusable mistake in counsel’s understanding of a stipulation concerning the brief.

There is no merit in the suggestion that respondents are estopped to take advantage of the default because of the letter of Rosenkranz to Tilden, in which he impliedly consented to a few days’ further delay in the filing of the brief for appellant. The affidavit of Rosenkranz shows that at the time he wrote that letter he understood that the transcript had been filed. [1] Where a delayed transcript has been filed prior to the hearing of the motion to dismiss, but not until after notice given of motion to dismiss, such filing constitutes no defense to the motion, with a possible exception when the facts establish the existence of reasonable grounds excusing the delay. (Carter v. Paige, 77 Cal. 64 [ 19 Pac. 2 ].) Appellant has made no showing, within this rule, of legal excuse for his delay. (Erving v. Napa Valley Brewing Co., 16 Cal. App. 41 [ 116 Pac. 331 ].)

The appeal is dismissed.

Curtis, J., concurred.