Opinion
Appeal from Superior Court, Fresno County; Denver S. Church, Judge.
Action for damages for personal injuries by Murle Preo against B.A. Roed and another. Judgment for plaintiff, and defendants appeal. Affirmed.
COUNSEL
Fenston, Williams & Hansen and Frank Kauke, all of Fresno, for appellants.
Gallaher & Jertberg, of Fresno, for respondent.
OPINION
CAMPBELL, Justice pro tem.
In this action the jury found for the plaintiff and against the defendants and assessed plaintiff’s damages in the sum of $7,500. From the judgment entered upon this verdict defendants have appealed.
The action grew out of a collision which took place between a truck owned and operated by defendant B.A. Roed and a motorcycle driven and ridden by plaintiff, it being alleged that defendant Roed was delivering milk of the Jersey Farm Dairy Company, under which name defendant Frank M. Helm, Inc., was doing business, and the damages awarded were for personal injuries received by plaintiff as the result of such collision.
Appellant B.A. Roed has filed no brief, and appellant Frank M. Helm, Inc., in its brief, contends that the judgment should be reversed for the reason that defendant B.A. Roed, whose truck, which was driven by his brother, L.A. Roed, and which collided with the motorcycle driven and ridden by respondent, was not an employee of defendant Frank M. Helm, Inc., but was an independent contractor. Respondent disputes this contention and urges that the evidence and inferences properly deducible therefrom sufficiently support the allegation that B.A. Roed was, at the time of the accident, in the employ and acting as the servant and agent of appellant Frank M. Helm, Inc., and further urges that the reporter’s transcript on appeal— the appeal having been taken under the alternative method— cannot be considered for the reason that the notice of appellant to the clerk to prepare the transcript under the provisions of section 953a of the Code of Civil Procedure was not given within the time allowed by law, and this court is without jurisdiction to avail itself of the reporter’s transcript and therefore the clerk’s transcript is the only record in the case properly before the court. If this latter contention of respondent be correct, and there is nothing before the court but the judgment roll, with the complaint stating a cause of action against the defendants, the jury having found a verdict against them, and with every intendment and presumption not contradicted by or inconsistent with the record on appeal being indulged in favor of the judgment of the superior court (Finkelstein v. Cosgrove, 83 Cal.App. 201, 203, 256 P. 608), the judgment must be affirmed.
The verdict of the jury was returned and filed May 26, 1927, and the judgment upon such verdict was duly entered on the same day. On June 1, 1927, 5 days after verdict and entry of judgment, the defendants served and filed their notice of intention to move for a new trial. On August 22, 1927, 88 days after the verdict and entry of judgment, defendants served and filed their notice of appeal. On August 22, 1927, 88 days after the verdict and entry of judgment and 27 days after the expiration of the two months’ time within which, under the law (Code Civ.Proc. § 660), the court could pass upon the motion for a new trial, and at which time— the motion not having been presented— it was denied by operation of law, the defendants served and filed their notice to the county clerk requesting that the transcript of the testimony offered or taken, evidence offered or received, instructions given at the request of plaintiff and offered and requested by defendants, etc., be made up and prepared.
Appellant Frank M. Helm, Inc.— the only appellant in the action filing briefs— has completely ignored the question raised by respondent as to the court’s jurisdiction to avail itself of the reporter’s transcript, devoting its entire argument in an effort to show that the evidence does not support the conclusion that defendant Roed at the time of the accident was its servant or agent.
The defendants filed their motion for a new trial within ten days after the verdict, but did not further prosecute it and never made the motion in court, and the time for passing upon the motion by the court expired July 26, 1927, two months after the verdict of the jury, at which time the motion was denied without further order of the court (Code Civ.Proc. § 660), and defendants, under the provisions of section 953a of the Code of Civil Procedure, had to and including August 5, 1927, within which to file notice to the clerk requesting a transcript of the testimony and the record generally; such section providing: "Said notice must be filed within ten days after notice of entry of the judgment, order or decree, or if a proceeding on motion for new trial be pending, within ten days after notice of decision denying said motion, or of other termination thereof." The power to grant a new trial and the mode of exercising that power are dependent upon the statute, the provisions of which define and limit the powers of the court in granting a new trial. The right to move for a new trial is statutory, and must be pursued in the methods pointed out by the statute. Holtum v. Greif, 144 Cal. 521, 78 P. 11; Townley v. Adams, 118 Cal. 382, 50 P. 550.
It has been held in this state that where a right depends upon notice of a fact or proceeding, and not upon service of notice, actual notice or knowledge shown by facts appearing in the records of the court is sufficient. Brown v. Superior Court, 175 Cal. 141, 165 P. 429. As is said in Bernschein v. Whitaker, 175 Cal. 130, 165 P. 523: "The ten days’ time ‘after notice of decision’ denying a motion for new trial or ‘other termination’ of such a motion, within which a party may file demand for record under section 953a of the Code of Civil Procedure, or may serve a proposed bill of exceptions under section 650 of the Code of Civil Procedure, commences to run immediately upon the failure of the trial court to pass on the motion within three months [now, by 1923 amendment, two months] after the verdict of the jury or service on the moving party of notice of decision of the court (Code Civ.Proc., sec. 660). Written notice of the decision denying the motion is not essential under these particular statutory provisions. Actual notice only is required, and in the event of such a termination of the new trial proceeding, as we have stated, the law itself gives the notice."
The notice to the clerk, requesting the transcript, being filed beyond the ten-day limit prescribed in the statute, the question remaining is: May the court consider the reporter’s transcript in determining the appeal? This question is directly passed upon in Hume v. Lindholm, 85 Cal.App. 80, 83, 258 P. 1003, 1005, in which the court says: "Defendant’s request for a transcript having been made more than ten days after said actual notice, we hold that the request for the reporter’s transcript was not made within the statutory time as to the judgment, and, therefore, cannot be considered as a part of the record on which to consider said appeal from the judgment (Spear v. Monroe, 181 Cal. 728, 186 P. 149; Brown v. Superior Court, 175 Cal. 141, 165 P. 429)."
Under the authority of Hume v. Lindholm, supra, the reporter’s transcript not being available for consideration by the court, on the record as presented the judgment must be and it is affirmed.
We concur: TYLER, P.J.; CASHIN, J.