Drake v. Davis

Civ. A. No. 6192. Mar. 29, 1946.]

ETTA R. ECHOLS DRAKE, Respondent, v. E. B. DAVIS et al., Appellants.

COUNSEL

Walter L. Gordon, Jr., for Appellants.

David W. Williams for Respondent.

OPINION

BISHOP, J.

Respondent has moved "to terminate proceedings in the above entitled cause and to dismiss the same" on the ground that the appellant-defendants have not taken the first step requisite to the preparation of a record on appeal, and hence have failed to prosecute their appeals with diligence. We have concluded that the defendants are in default, without excuse, in the preparation of the record on appeal, and that in consequence an order should be made, not terminating proceedings, but dismissing the appeals.

When the new rules, governing appeals in civil cases from [73 Cal. App. 2d Supp. 1001] municipal courts, came into being, in September of 1945, several old practices went into oblivion. So nearly identical was the procedure in the municipal courts with that in the superior courts, and so closely are the new rules for the municipal courts modeled after the new rules which are applicable to appeals from the superior courts, that the following quotation from Averill v. Lincoln (1944), 24 Cal. 2d 761, 763-764 [151 P.2d 119, 120], is apposite, reference within the brackets being to the rules that affect appeals from municipal courts: "The new rules constitute a fundamental departure from the old procedure in the following respects: (1) Fixed periods are specified for the performance of the various steps in preparing the record, and when the allotted time has elapsed the appellant is in default. [Rules 4-7.] (2) The trial court has authority to extend time for limited periods, and has no power to extend if the time has already expired. [Rule [17(b)].] (3) The appellate court alone has power to grant additional extensions of time and to relieve from default. [Rules [17(c)] and [22(b)].] As a result of these changes, the motion to terminate proceedings for a record has disappeared from our procedure." Emphasis is given to the conclusion that the only court that can now give relief from default in the preparation of the record on appeal is the appellate, not the trial court, in Peebler v. Olds (1945), 26 Cal. 2d 656, 659 [160 P.2d 545]. (See, also, Jarkieh v. Badagliacco (1945), 68 Cal. App. 2d 426 [156 P.2d 969].)

[1] What is to be done in the event of a default from which the reviewing court grants no relief? In cases appealed from the superior court, "If the specified time and allowable extensions have elapsed, the appeal will be dismissed under rule 10(a) unless the appellate court grants relief." (Averill v. Lincoln, supra, 24 Cal. 2d 761, 764 [151 P.2d 119, 120].) But the rules governing appeals from municipal courts contain no counterpart of rule 10(a). However, the absence from the rules of a provision expressly authorizing superior courts to dismiss appeals where the appellants are hopelessly in default, does not mean that dismissals may not be ordered, for it is generally recognized that a court has an inherent right to dismiss a case pending before it when that is the proper disposition of the matter.

Prior to the addition of section 583 of the Code of Civil Procedure in 1905, section 581 of that code furnished the [73 Cal. App. 2d Supp. 1002] only express provisions for the dismissals of cases because of any delay in bringing them to trial, and the provisions then made were limited to dismissals in the event summons had not been issued within a year, or, if issued, not served and returned within three years, of the commencement of the action. As was to be expected, someone arose to argue that the explicit statement of these grounds for a dismissal negatived the use of others. But in People ex rel. Stone v. Jefferds (1899), 126 Cal. 296, 298-301 [58 P. 704], after a review of several early cases, it was determined that the power to dismiss an action for lack of prosecution was inherent in the court and not limited by the provisions of section 581. This case has been frequently cited with approval. It and only a partial list of the others which might well have been included appear in Gray v. Times-Mirror Co. (1909), 11 Cal. App. 155, 160 [104 P. 481], following the introductory statement: "But that nisi prius courts possess inherent power to dismiss pending actions upon the ground that they have not been diligently prosecuted is a proposition repeatedly confirmed and well settled in this state." (See, also, Craghill v. Ford (1932), 127 Cal. App. 661, 666 [16 P.2d 343].)

That superior courts have an inherent power to dismiss, for lack of diligent prosecution, actions pending before them on appeals from justices' courts on questions of law and fact, has been recognized in the following cases: Pistolesi v. Superior Court (1915), 26 Cal. App. 403, 405 [147 P. 104]; Long v. Superior Court (1916), 31 Cal. App. 34, 35 [159 P. 734]; Kaster v. Superior Court (1917), 34 Cal. App. 88, 90 [166 P. 852]; Hochheimer & Co. v. Superior Court (1924), 65 Cal. App. 206, 208 [223 P. 564]; Pacific Dry Goods Co. v. Superior Court (1935), 9 Cal. App. 2d 707, 710, 711 [51 P.2d 180].

No doubt the silence of the cases with reference to the inherent power of the Supreme Court to dismiss appeals which have not been kept in step with the passing days, is due to the existence of express provisions in its rules providing for dismissals in such cases. Rule V has been on the books at least since 1892 (130 Cal. XXXVIII), and we find its predecessor in 4 Cal. XVI. Even so, in Moultrie v. Tarpio (1905), 147 Cal. 376, 378 [81 P. 1112], we find the court discussing facts showing that appellant had practically abandoned all proceedings looking to a prosecution of his appeal, by his failure to take any steps towards preparation of the record, [73 Cal. App. 2d Supp. 1003] and stating: "there can be no doubt of the inherent right of this court to dismiss an appeal under such circumstances."

Having concluded, therefore, that we have the power, upon proper occasion, to dismiss an appeal because of the failure of the appellant to proceed diligently with its prosecution, we note that, usually, two public policies come into conflict in determining in any case whether or not the occasion is a proper one for a dismissal. The first of the policies is set forth in Jarkieh v. Badagliacco, supra, 68 Cal. App. 2d 426, 431 [156 P.2d 969, 971], in these words: "There is, of course, a strong public policy in favor of hearing appeals on their merits and of not depriving a party of his right of appeal because of technical noncompliance where he is attempting to perfect his appeal in good faith." The other public policy, which creates a problem when it comes into conflict with the first, grows out of the fact, phrased by Gladstone, that justice delayed is justice denied. As declared in O'Connell Gold Mines, Ltd. v. Baker (1943), 60 Cal. App. 2d 777, 779 [141 P.2d 785]: "It is the policy of the law to require an appellant to exercise diligence in perfecting and prosecuting his appeal. Prompt disposition of appeals is in the interest of justice."

[2] The problem in the present appeal is not a difficult one. It appears that judgment was rendered in plaintiff's favor on December 7, 1945, in an action for unlawful detainer based upon the ground that the defendants were committing a nuisance. A motion to set aside the judgment was denied, and the defendants, on December 18, (possibly two days later), filed a notice of appeal from the judgment and from the subsequent order, and posted a $250 bond to stay execution. No action looking to the preparation of a record on appeal was taken until after the respondent served and filed her notice of motion in this court, March 11, 1946. The action then taken by the appellant was to file, in the trial court, a request for the clerk of that court to prepare a transcript containing copies of the complaint, of the judgment, and of some other papers. As appellant was over seventy days late in filing this request, and filed it without being relieved of his default, and he does not even yet make any pretense that he can suggest a reason which will excuse his default, the belated presence of the request, filed after the notice to dismiss was filed, will not bar the dismissal. It may [73 Cal. App. 2d Supp. 1004] be questioned whether, under the present rules, the filing of a request after default, without leave of this court, even if accomplished before the giving of the notice of a motion to dismiss, should serve to obstruct the granting of the motion, where no claim is made that an excuse exists for the tardy appearance of the request and that its late filing should be approved. But, in any event, where, as here, the filing comes after the notice of motion, it is too late to be of avail. "The right of the complaining party to a dismissal must be determined by the facts as they exist at the time the notice of motion is given, and it is not destroyed by the mere subsequent filing of the necessary document. [Citing cases.]" (Murphy v. Krumm (1943), 21 Cal. 2d 846, 849 [136 P.2d 8].)

The motion to terminate the proceedings looking to the preparation of a record on appeal is denied, but the appeals are dismissed.

Shaw, P. J., and Kincaid, J., concurred.