Scott v. Landis

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[Civ. No. 2397. Fourth Appellate District. May 17, 1940.]

WILLIAM HARVEY SCOTT, Respondent, v. AUSTIN LANDIS et al., Appellants.


No appearance for Appellants.

Morris McLaughlin for Respondent.


Griffin, J.

In the above-entitled case the certificate of the county clerk of Kern County filed herein, shows that the [39 Cal. App. 2d 164] notice of appeal from the judgment and order denying a motion for new trial was filed on January 19, 1940. [1] Notice to prepare a transcript under section 953a of the Code of Civil Procedure was filed on the same date. The court thereafter ordered a transcript prepared. Appellant requested the clerk to withhold preparation of the transcript pending the determination of a certain motion. On February 5th the motion was denied. No further instructions were given to the clerk. No deposit was made or undertaking filed to cover costs of the transcript. No proceedings were instituted for a bill of exceptions. On May 14, 1940, for the reasons stated, respondent moved to dismiss the appeal. Due service of the notice of motion was given. Appellants failed to appear in response to the notice. [2] Where no transcript is filed within the time required by law after the perfecting of an appeal and there is no statement or bill of exceptions, which can be used upon appeal, settled or pending settlement, the appeal may properly be dismissed. (Tompkins v. Montgomery, 116 Cal. 120 [47 P. 1006]; Buckley v. Althorf, 86 Cal. 643 [25 P. 134]; Judge v. Ohm, 89 Cal. 134 [26 P. 649].)

Appeal dismissed. The attempted appeal from the order denying motion for new trial is dismissed.

Barnard, P. J., and Marks, J., concurred.

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