Commander Oil Co. v. Bardeen

COMMANDER OIL COMPANY, LTD. (a Corporation), et al., Respondents, v. H. A. BARDEEN et al., Appellants.

COUNSEL

Oliver O. Clark for Appellants.

Don S. Irwin, Andrews, Blanche & Kline and E. J. Queen for Respondents. [44 Cal. App. 2d 797]

OPINION

McCOMB, J.

This is a motion to dismiss the above entitled appeal on the ground that appellant has failed to conform to the requirements of Rule I of the Rules for the Supreme Court and District Courts of Appeal (213 Cal. xxxv).

The facts are these:

Appellant chose to prepare his record for use on appeal pursuant to the requirements of section 953a of the Code of Civil Procedure.

May 31, 1939, notice of appeal was filed. October 21, 1940, the clerk's transcript was filed in this court. February 24, 1941, the reporter's transcript on appeal was certified by the judge of the trial court, and on or about February 26, 1941, said transcript was tendered for filing to the clerk of this court.

This is the sole question for our determination:

[1] Is appellant in default pursuant to the provisions of Rule I of the Rules for the Supreme Court and District Courts of Appeal, supra?

This question must be answered in the negative. Under the provisions of section 1 of Rule I, supra, appellant had forty days after the reporter's transcript was approved and certified by the trial judge within which to file the same in this court, since the record was prepared pursuant to the provisions of section 953a of the Code of Civil Procedure. Under the provisions of section 4 of Rule I, supra, appellant had thirty days after the filing of the reporter's transcript within which to prepare and file his opening brief. The reporter's transcript having been certified February 24, 1941, and having been tendered for filing in this court on or about February 26, 1941, the time for filing the reporter's transcript clearly had not elapsed, and ipso facto the time for the preparation of appellant's brief had not expired.

For the foregoing reasons the motion to dismiss the appeal is denied and the clerk is ordered to file the reporter's transcript as of May 15, 1941.

Wood, Acting P. J., concurred.