Spear v. Monroe

Proceeding in mandate looking to compelling the judge of the trial court to settle and certify a proposed record on appeal under section 953a of the Code of Civil Procedure, and to requiring the clerk to certify and forward record of judgment-roll, etc., prepared under said section. The petition shows that the notice requesting preparation of said record required by the section was not filed within ten days after notice of entry of the judgment. [1] The failure to file such a notice within the time specified in the section goes to the jurisdiction in so far as thepreparation of the record is concerned, at least in the absence of an order of the trial court relieving the party from his default in the matter of filing such notice. (See Estate ofKeating, 158 Cal. 109, [110 P. 109]; Fiske v. Gosbey,168 Cal. 334, [143 P. 611].)

[2] The fact that a notice of appeal has been filed is altogether immaterial in so far as the effect of a failure to file this notice for the preparation of a record is concerned.

The order of the judge, made ex parte, granting further time for the preparation of the record on account of the inability of the reporter to finish the same within the time specified in the section, is likewise immaterial here. [3] It was not an order relieving the party from his default in the matter of filing the notice, and was made by the judge in ignorance of the fact that no notice had been filed in time. [4] The court was justified in vacating the same and in refusing to settle and certify the transcript, as was also the clerk in refusing to forward any record prepared under that section.

The application for a writ of mandate is denied.

All the Justices concurred, except Melvin, J., who was absent.