Walker v. Etcheverry

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[Civ. No. 2538. Fourth Appellate District. May 20, 1940.]

THOMAS E. WALKER et al., Respondents, v. FILBERT JOE ETCHEVERRY et al., Appellants.

COUNSEL

Borton, Petrini, Conron & Borton and Farnsworth, Burke & Maddox for Appellants.

Bradley & Bradley for Respondents.

OPINION

Barnard, P. J.

In this action for damages the defendants have appealed from a judgment in favor of the plaintiffs. An order terminating proceedings for the preparation of a transcript was entered on December 26, 1939, which order was affirmed on another appeal. (Walker v. Etcheverry, 38 Cal. App. 2d 611 [101 PaCal.2d 709].) On January 5, 1940, a clerk's transcript was filed in this court, the clerk's certificate being under date of December 6, 1939.

[1] On February 1, 1940, the respondents filed a notice of motion to dismiss the appeal from the judgment on the grounds that proceedings for the preparation of a transcript under section 953a of the Code of Civil Procedure had been terminated, and that a clerk's transcript had not been filed within the time allowed. So far as appears from the record now before us the order of December 26, 1939, affected only [39 Cal. App. 2d 189] the preparation of a reporter's transcript under section 953a, and had no effect upon the subsequent filing in this court of the clerk's transcript which had been prepared and certified before that order was made.

The fact that the clerk's transcript was on file in this court before the filing of the notice of motion to dismiss this appeal is a sufficient answer to the contention that it was not filed on time. (Steiner v. Davis, 21 Cal. App. 2d 334 [69 PaCal.2d 184].) While it would appear that no reporter's transcript could now be prepared and filed, the appellants are entitled, if they desire, to raise any question which can be presented upon the judgment roll alone.

For the reasons given, the motion to dismiss the appeal is denied.

Marks, J., and Griffin, J., concurred.