Martin v. California Investment & Financial Co.

26 P.2d 17, 219 Cal. 283, 1933 Cal. LEXIS 387

Opinion

WASTE, C. J.

Motion to dismiss appeal for failure to file transcript within time. The clerk’s certificate offered in support thereof indicates that the notice of appeal was filed May 27, 1933, and that proceedings have not been instituted for the preparation of a record to be used on the appeal. The motion to dismiss was noticed for September 5, 1933, at which time appellants offered, in opposition thereto, two orders of this court purporting to extend their time for the filing of the transcript. Upon the hearing the respondents urged that the original order of extension had spent its force and the time therein provided for had expired prior to the signing of the second order of extension. We find it unnecessary to pass on this point for, granting full effect to both orders, we discover upon an examination of our files and records that the time provided for in the second and final order of extension had expired on the day preceding the one on which the motion was noticed. In other words, this court by its two orders purported to extend appellants’ time only to September 4, 1933, for the filing of the transcript. This being so, and conceding full effect to both orders of extension, it appears that appellants, not having filed their transcript, were in default on September 5, 1933, when the motion came on for hearing. Inspection of the record further discloses that such default continues to the present time and appellants have made no application for relief therefrom. Under the circumstances, we have no alternative but to dismiss the appeal. (Rule V; Union Trust Co. v. Novotny, 125 Cal. App. 417, 418 [13 Pac. (2d) 974]; Id., 125 Cal. App. 418 [13 Pac. (2d) 974].) It is so" ordered.

Seawell, J., Curtis, J., Preston, J., Langdon, J., and Thompson, J., concurred.