Hussong v. Byers

This is a motion by respondent to dismiss an appeal from the judgment, upon the ground that no transcript of the record, or appellants' points and authorities, have been filed within the time allowed by law, and that the time for preparation thereof, has expired. It appears from the certificate of the county clerk that judgment was entered in this action on September 11, 1929; that notice of entry of said judgment was served on the attorney for appellants on September 12, 1929; that on September 20, 1929, appellants' attorney filed a notice of appeal, which notice included a request for the preparation of a transcript of the evidence and proceedings at the trial; that thereafter the county clerk demanded payment in advance of the fees for the preparation of said transcript; that the same were not paid and the transcript was not prepared; that no further demand for such transcript was made by the attorney for the defendants; that on the fourteenth day of October, 1929, the attorney for defendants filed another notice of appeal, no request for the preparation of a transcript being made; that no other attempt has been made by the defendants, or their attorney, to prepare a record for the purposes of said appeal, and that no proceedings are pending in the Superior Court for a bill of exceptions, and the time therefor has expired. Notice of motion to dismiss was filed in the Supreme Court on January 9, 1930. The matter was later transferred to this court, and thereafter a supplemental notice of motion to dismiss was served on appellants' attorney.

[1] No reply of any kind has been filed by the appellants and no appearance was made at the time set for hearing the motion. Under section 953 (b) of the Code of Civil Procedure it is incumbent upon an appellant to either file an undertaking or otherwise arrange for the compensation of the reporter in preparing a transcript. No attempt to comply with the statute is disclosed by the record here. The time for filing the transcript and appellants' points and authorities, including any extensions that were within the power of the court to make on any possible motion for new trial having expired and no excuse therefor, reasonable or otherwise, being shown, the motion of respondent must be granted. (Sutter County v. Tisdale, 128 Cal. 180 [60 P. 757]; Hughes v. De Mund, 195 Cal. 242 [233 P. 94].)

The appeal from the judgment is dismissed.

Sloane, P.J., and Marks, J., concurred.