Scarpel v. East Bay Street Railway

TONY SCARPEL, Appellant, v. EAST BAY STREET RAILWAYS, LTD., Respondent.

COUNSEL

Alfred J. Hennessy for Appellant.

Robert Bruce Wachob and Donahue, Richards & Hamlin for Respondent.

OPINION

Peters, P. J.,

Delivered the Following Opinion from the Bench: In view of what has transpired here this morning and in view of the record, the court will make the following order: The appellant makes three points as to why the appeal from the order terminating [proceedings for preparation of a record] should not be dismissed: First, that the court has no [42 Cal. App. 2d 33] power to dismiss a frivolous appeal. [1, 2] Although that is sometimes stated to be the usual rule, that rule has a well-recognized exception applicable here: That is, where a mere examination of the judgment roll demonstrates that the appeal is frivolous the court has inherent power to dismiss (Sonoma M. Co. v. National etc. Corp., 189 Cal. 433 [208 P. 962]). Here the record demonstrates that the time for preparing any kind of a record has long since expired. [3] Secondly, it is urged by the appellant, that at the time the notice of entry of judgment was served on Sullivan, he was not the attorney for the appellant, having ceased to be such on April 9, 1940, and that notice of denial of motion for a new trial was not served until July, 1940. But the record shows that Sullivan did not retire by filing a notice to that effect until September 24, 1940. Under sections 284 and 285 of the Code of Civil Procedure, service on Sullivan was a valid service. The third point urged is, that the notice was not properly served on Sullivan. Affidavits now on file demonstrate that this contention is without merit. It is therefore ordered, in view of the affidavits now on file and in view of what the record shows that the appeal from the order terminating be dismissed; that in view of the fact that the judgment roll demonstrates to a certainty that no record may now be prepared, the appeal on the merits is obviously frivolous, and for that reason the appeal on the merits should be likewise dismissed. It is so ordered.