Keys v. Mother Lode Extension Mines, Inc.

California Supreme Court

Keys v. Mother Lode Extension Mines, Inc.

299 P. 524, 212 Cal. 612, 1931 Cal. LEXIS 658

CourtCalifornia Supreme Court

DecidedMay 18, 1931

DocketDocket No. Sac. 4543.

StatusPublished

Cited by7 cases

This text of 299 P. 524 (Keys v. Mother Lode Extension Mines, Inc.) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Keys v. Mother Lode Extension Mines, Inc., 299 P. 524, 212 Cal. 612, 1931 Cal. LEXIS 658 (Cal. 1931).

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Opinion

THE COURT.

The respondents-plaintiffs have filed notice of motion and supplemental notice of motion to dismiss the appeal for failure of the appellants to file transcript on appeal and upon the ground that an inspection of the record will disclose the appeal is frivolous and not taken in good faith.

From the affidavits and certificate of the clerk of the trial court filed in support of the motion to dismiss, it appears that a transcript on appeal was filed prior to the making of the supplemental motion to dismiss, and it does not appear that any order was made in the trial court terminating proceedings for the preparation of the record. While it was formerly the rule that, in the absence of a timely filing of request for a transcript or relief from default, a transcript thereafter filed did not merit consideration, the later decisions of this court have modified the rule, and it is now settled that the act of certification of a record by the trial judge is, in effect, the equivalent of relief from default under section 473 of the Code of Civil Procedure. (Lynch v. Coe, 203 Cal. 422, 424 [264 Pac. 474].)

To determine whether the appeal is frivolous and not taken in good faith would require such an examination of the record and the appeal on its merits as would amount *614 to a very substantial advancement of the cause, to which it is not entitled. . (See Haines v. Commercial Mortgage Co., 205 Cal. 71 [269 Pac. 921].)

The motion to dismiss is therefore denied.

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THE COURT.

The respondents-plaintiffs have filed notice of motion and supplemental notice of motion to dismiss the appeal for failure of the appellants to file transcript on appeal and upon the ground that an inspection of the record will disclose the appeal is frivolous and not taken in good faith.

From the affidavits and certificate of the clerk of the trial court filed in support of the motion to dismiss, it appears that a transcript on appeal was filed prior to the making of the supplemental motion to dismiss, and it does not appear that any order was made in the trial court terminating proceedings for the preparation of the record. While it was formerly the rule that, in the absence of a timely filing of request for a transcript or relief from default, a transcript thereafter filed did not merit consideration, the later decisions of this court have modified the rule, and it is now settled that the act of certification of a record by the trial judge is, in effect, the equivalent of relief from default under section 473 of the Code of Civil Procedure. (Lynch v. Coe, 203 Cal. 422, 424 [264 Pac. 474].)

To determine whether the appeal is frivolous and not taken in good faith would require such an examination of the record and the appeal on its merits as would amount *614 to a very substantial advancement of the cause, to which it is not entitled. . (See Haines v. Commercial Mortgage Co., 205 Cal. 71 [269 Pac. 921].)

The motion to dismiss is therefore denied.

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Bluebook (online)

299 P. 524, 212 Cal. 612, 1931 Cal. LEXIS 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keys-v-mother-lode-extension-mines-inc-cal-1931.

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