Opinion
Docket No. L.A. 8236.
July 14, 1925.
MOTION to affirm judgment upon ground that no reporter's transcript has been settled, certified, or filed. Motion denied.
The facts are stated in the opinion of the court.
Davis Thorne for Appellants.
G.C. DeGarmo and H.B. Cornell for Respondent.
THE COURT.
This is a motion to affirm the judgment upon the ground that no reporter's transcript has been settled, certified, or filed upon this appeal, the appeal having been taken pursuant to the provisions of Code of Civil Procedure, section 953a et seq. The record upon appeal now on file in this court consists of a "clerk's transcript," containing a certified copy of the judgment-roll, the notice of appeal, and the notice to the clerk to prepare transcript. There is also a "supplemental clerk's transcript," containing certified copies of a bill of particulars, demand for bill of particulars, order appointing referee, report and finding of referee, exceptions to the report of referee and of certain other documents on file in the office of the clerk of the trial court. The findings of the referee were not included in the "judgment-roll" as the same was made up by the clerk of the trial court. They should have been so included (Code Civ. Proc., sec. 670), and doubtless may be regarded for the purposes of this appeal as a part of the judgment-roll. The absence in the record upon appeal of a reporter's transcript or bill of exceptions is not in and of itself a ground for affirmance of the judgment. The transcript of a judgment-roll, together with notice of appeal, is a sufficient record upon appeal if the appellant elects to prosecute his appeal upon such a record. If the grounds for appeal appear in the judgment-roll no bill of exceptions or reporter's transcript is required. (2 Cal. Jur., p. 527.) Appellants' opening brief is on file herein and it appears therefrom that they urge various points upon this appeal which cannot be considered in the absence of reporter's transcript, but they also make the points that the judgment appealed from is not supported by the findings and that the complaint herein does not state a cause of action. These points may be considered and determined upon an inspection of the judgment-roll alone. The motion to affirm must, therefore, be denied, because a consideration and determination of these points at this time would involve in effect a determination of the merits of the appeal, and would effect an unwarranted advancement of this case. ( Jenks v. Lurie, 195 Cal. 582 [ 234 P. 370]; 2 Cal. Jur., p. 771.)
Appellants have filed counter-affidavits in response to the motion, in which they show that they filed within due time in the court below a notice to the clerk to prepare transcript, which was sufficiently broad in its terms to require the preparation of a reporter's transcript; that they arranged with the reporter for his compensation therefor; that such transcript was duly prepared by the reporter and delivered to counsel for appellants, who examined the same and returned it to the reporter for delivery to the clerk; that the same was duly delivered by the reporter to the clerk for presentation to the judge who tried the case; that for some unexplained reason no time was ever fixed by the trial judge for the settlement of the transcript, but that counsel for appellants believed, and had some reason to believe, that the reporter's transcript had been settled, certified and filed in this court, and that appellants prepared and filed their opening brief herein, believing in good faith that the reporter's transcript was in fact on file in this court. Appellants also filed herein an affidavit of merits, evidently intended as part of an application to this court for relief under Code of Civil Procedure, section 473 If there is, under the present circumstances, any occasion for application for relief under this section it should be addressed to the trial court. ( Curtin v. Ingle, 155 Cal. 53, 57 [ 99 P. 480]; Morey v. Paladini, 187 Cal. 727 [ 203 P. 760].) The matter of the settlement and certification of a reporter's transcript for use upon appeal is committed, in the first instance, to the trial judge. There is no proceeding now before us under which we would be entitled, if we were so disposed, to control or direct his action in this matter.
The motion to affirm is denied.