Opinion
Docket No. Sac. 4543.
May 18, 1931.
MOTION to dismiss an appeal from a judgment of the Superior Court of Tuolumne County. J.T.B. Warne, Judge. Motion denied.
The facts are stated in the opinion of the court.
Kelby Lawson and Rowan Hardin for Appellants.
W.W. Kaye for Respondents.
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.
[1] 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 P. 474].)
[2] 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 to a very substantial advancement of the cause, to which it is not entitled. (See Haines v. Commercial Mortgage Co., 205 Cal. 71 [ 269 P. 921].)
The motion to dismiss is therefore denied.