Jarkieh v. Badagliacco

156 P.2d 969, 68 Cal. App. 2d 426, 1945 Cal. App. LEXIS 780

• Court: California Court of Appeal
• Decided: March 16, 1945
• Docket: Civ. 12756
• Status: Published

Opinions

PETERS, P. J.

There are pending before this court several appeals and motions, all connected with plaintiff’s attempts to secure a dismissal of the appeal of defendant, or with defendant’s attempts to secure relief from her default in failing to have the record prepared within the time prescribed by law.

Plaintiff and defendant are brother and sister and administrator and administratrix of the estate of their deceased mother. The mother had several bank accounts in her name as trustee for defendant, or in the names of herself and defendant as joint tenants. Plaintiff claims a one-half interest in each account, and brought this action to have such right declared. The case was tried before a jury, and, on July 13, 1943, a verdict was rendered for plaintiff. On October 11, 1943, defendant, within the time required by law, filed her notice of appeal. Rule 4 of the Rules on Appeal, effective July 1, 1943, requires an appellant to serve on respondent and file with the court clerk within ten days after filing the notice of appeal, a notice to prepare the reporter’s transcript. Subdivision (c) of this rule provides: “The notice given by the appellant under the foregoing provisions of this rule shall not be effective for any purpose unless, within ten days after notification by the clerk of his estimate of the cost of preparing the reporter’s transcript as designated by the notices of the parties, the appellant shall either deposit with the clerk an amount of cash equal to the estimated cost ...... or file with the clerk a waiver of such deposit signed by the reporter. When the appellant has complied with the provisions hereof, the clerk shall forthwith direct the reporter to prepare the reporter’s transcript. ...” Subdivision (d) requires the reporter to prepare the transcript within thirty days of receipt of notification by the clerk.

On October 20, 1943, well within the ten-day limitation of rule 4, by stipulation of counsel and with the approval of the trial judge, the time for filing the notice to prepare the transcript was extended for a period of ten days. The trial court refused any further extension, and on October 30, 1943, a notice to prepare the transcript was duly served and filed. On November 12, 1943, the court reporter advised counsel for defendant that the cost of preparing the transcript would be $1,000. Defendant’s counsel did not make any financial arrangements with the reporter until March 13, 1944, when associate counsel handed the reporter a check for $1,000. Obviously, this step was several months too late unless defendant is to be relieved of her default.

On March 2, 1944, plaintiff moved in the lower court to terminate proceedings to obtain a transcript. This motion was granted on March 15, 1944, and defendant has appealed therefrom. Thereafter, defendant moved to vacate the order terminating the proceedings. This motion was denied in April of 1944, and defendant has appealed from such order of denial. Defendant now moves to dismiss these two appeals taken by her. Both of these appeals must be dismissed for the reason that under the new Rules on Appeal a motion to terminate is unauthorized, and therefore an order granting such a motion is nonappealable. (Averill v. Lincoln, 24 Cal.2d 761 [151 P.2d 119].) In that case the changes accomplished by the new rules were commented on as follows (24 Cal.2d at p. 763): “Under the old statutes and former rules, control over the preparation of the record on appeal was in the hands of the trial court, and its power to accept or reject a record, to grant or deny extensions of time, and to grant or deny relief from default, was virtually unlimited.

“The new rules constitute a fundamental departure from the old procedure in the following respects: (1) Fixed periods are specified for the performance of the various steps in preparing the record, and when the allotted time has elapsed the appellant is in default. (Rules 4-7.) (2) The trial court has authority to extend time for limited periods, and has no power to extend if the time has already expired. (Rule 45(b).) (3) The appellate court alone has power to grant additional extensions of time and to relieve from default. (Rules 45(c) and 53(b).)

“As a result of these changes, the motion to terminate proceedings for a record has disappeared from our procedure. If the specified time and allowable extensions have elapsed, the appeal will be dismissed under rule 10(a) unless the appellate court grants relief.”

Under rule 45(b) the power of the superior court to grant extensions of time for doing any act or acts involved in the preparation of the record is limited to a total of ninety days. No power to relieve from default, even within the ninety days, is granted to the trial court. After the expiration of ninety days’ control over extensions and control over the preparation of the record are in the appellate courts alone. It follows, of course, that a motion to terminate proceedings in the lower court is a nonexistent motion. It should be mentioned that these new rules went into effect on July 1, 1943, and the Averill case was not decided until August of 1944, so that neither the trial court nor counsel had the benefit of that decision when these motions were made and passed on in March and April of 1944.

Prior to the April, 1944, order, defendant’s counsel ordered the reporter to proceed with the preparation of the transcript so that on the date the order refusing to vacate the order of termination was signed, a substantial portion of the transcript had been transcribed.

When counsel’s attention was directed by this court to the case of Averill v. Lincoln, supra, defendant on January 19, 1945, moved this court to dismiss her two appeals above mentioned, and, under rule 53(b), moved to be relieved of her default. On the hearing of this motion on January 22, 1945, counsel for plaintiff under rule 10(a) moved to dismiss the appeal from the judgment. By stipulation these two motions were consolidated, and it was stipulated that on the motions this court could consider the entire record produced on the appeals from the order terminating and from the order refusing to vacate, plus certain new affidavits filed in support of the present motions.

The procedure now adopted by counsel is the proper procedure under the new rules. For any default in preparing the record relief must be secured, if at all, in the court to which the appeal has been taken. The last sentence of rule 53(b) reads: “The reviewing court for good cause may relieve a party from a default occasioned by any failure to comply with the new rules, except the failure to give timely notice of appeal.” Rule 10(a) contains the converse power. It provides: “If the appellant shall fail to perform any act necessary to procure the filing of the record . . . and such failure is the fault of the appellant and not of any court officer or any other party, the appeal may be dismissed on motion of the respondent or the reviewing court’s own motion.”

Before the adoption of these rules the control over, and responsibility for, the preparation of the record was in the trial court,' and its discretion in relieving from default or in terminating would not be disturbed in the absence of a manifest abuse. (Hohnemann v. Pacific Gas & Elec. Co., 31 Cal.App.2d 692 [88 P.2d 748]; Smith v. Jaccard, 20 Cal. App. 280 [128 P. 1023, 1026]; Beard v. Beard, 16 Cal.2d 645 [107 P.2d 385]; Bonfilio v. Ganger, 60 Cal.App.2d 405 [140 P.2d 861]; Cooke v. Cooke, 60 Cal.App.2d 451 [140 P.2d 989]; Wood v. Peterson Farms Co., 131 Cal.App. 312 [21 P.2d 468]; Bodin v. Webb, 17 Cal.App.2d 422 [62 P.2d 155].) That discretion is now conferred on the appellate courts. Without regard to what the trial court did on the motions to terminate and to vacate, we are called upon to determine whether in our discretion we should grant defendant’s motion for relief from default or plaintiff's motion to dismiss. We turn to a discussion of these problems.

In determining whether to relieve from default we are faced with two conflicting policies. There is, of course, a strong public policy in favor of hearing appeals on their merits and of not depriving a party of his right of appeal because of technical noncompliance where he is attempting to perfect his appeal in good faith. On the other hand, a respondent is likewise entitled to consideration. He is entitled to have the appellant proceed with expedition, and if the appellant fails to comply with the rules, to have the appeal dismissed. But this right to a dismissal is not absolute, except for failure to file the notice of appeal. Under the rules, the trial court may grant extensions not to exceed ninety days, the appellate court may grant additional extensions (rule 45(e)), and the appellate court may relieve from default (rule 53(b)). In determining whether an appellant should be relieved from default, various factors must be considered such as the length of the default, the circumstances surrounding the default, the relative injury that will flow to either party by granting or denying the relief, the nature of the default and other factors. Bach case must turn on its own facts, and precedents are of little value.

There have been many affidavits, counteraffidavits, supplemental affidavits, affidavits in rebuttal, and affidavits in surrebuttal filed in these proceedings. On several important matters the affidavits agree as to the facts. On other important matters, and on many trivial matters, they are in conflict. The affidavits agree that shortly after the jury brought in its verdict for plaintiff, counsel for plaintiff orally agreed not to execute on the judgment until the matter was finally determined. Counsel has scrupulously observed this agreement. It is also agreed that shortly after the jury brought in its verdict on July 13, 1943, counsel for plaintiff initiated negotiations for a settlement of the entire controversy. Admittedly, these negotiations continued until October 30, 1943, when defendant rejected the offer made by counsel for plaintiff. It is also admitted that thereafter, and until February 18, 1944, defendant and her counsel made various counteroffers of settlement, all of which were rejected by plaintiff and his counsel. Counsel for plaintiff in his affidavit filed in this court frankly and fairly admits that he participated in such negotiations as late as February 18, 1944, when he and his client visited the office of the attorney for defendant to entertain and discuss a new offer of settlement. The affidavits are sharply in conflict as to whether there was an oral understanding between counsel that the transcript need not be prepared pending these negotiations. Counsel for plaintiff denies malting such an agreement and avers that after October 30, 1943, he was under the impression that the transcript was being prepared. Counsel for defendant avers that such an understanding was had. We do not find it necessary to pass upon this conflict. The record shows that it is admitted that from July, 1943, to February, 1944, the parties and their counsel were discussing a compromise. Obviously, if $1,000 were expended for a transcript it would materially affect the result of that compromise. Defendant and her counsel were proceeding to try to settle the case and plaintiff and his counsel were participating in those conferences. Regardless of whether or not there was an agreement that the preparation of the transcript should be delayed, counsel for defendant and defendant apparently believed, in good faith, that no advantage would be taken of their default. Assuming defendant was careless in not having a formal understanding concerning the record, nevertheless she was, in a sense, lulled into a state of security by plaintiff’s participation in the settlement conferences. This is a factor that has always been considered of some importance in determining whether to waive a default. (Bonfilio v. Ganger, 60 Cal.App.2d 405 [140 P.2d 861].) Defendant should have made arrangements to pay the reporter by November 22, 1943. This, she did not do until March 13,1944. But it is significant that plaintiff and his counsel participated in a settlement conference as late as February 18, 1944, and that shortly after the motion to terminate was filed, arrangements were immediately made with the reporter. Thereafter, a considerable portion of the record was prepared.

The real default here is from February 18, 1944, to March 13, 1944, less than one month. What delay has occurred since March of 1944 has been caused by counsel’s mutual and understandable mistake in following an improper procedure. When these factors are considered, together with the fact that the new rules went into effect on July 1, 1943, but thirteen days before the verdict of the jury, we think defendant has made a sufficient showing to cause this court to relieve her from her default.

The appeals from the order terminating proceedings to secure a transcript and from the order denying the motion to vacate such order are dismissed for the reason that such orders were unauthorized and are nonappealable; that motion of plaintiff made under rule 10(a) to dismiss the appeal from the judgment is denied; the motion of defendant made under rule 53(b) to be relieved of her default is granted, and defendant is granted thirty days from the date this opinion becomes final to have the record prepared and filed as provided by the Rules on Appeal.

Knight, J., concurred.