Wilbur v. Kelly Banking Co.

Annotate this Case
[S. F. No. 15813. In Bank. January 20, 1938.]

EDITH WILBUR, Appellant, v. DONOHOE KELLY BANKING COMPANY (a Corporation) et al., Respondents.


W. G. Deal, W. H. Metson and P. H. McCarthy, Jr., for Appellant.

Luther Elkins, Tinning & De Lap and T. H. De Lap for Respondents.



Respondent moves to dismiss the several appeals here pending.

The action is one to quiet title. [1] An unraveling of the confusion now prevalent in the cause discloses that plaintiff filed a timely notice of appeal from a judgment quieting defendants' title and from the order denying her motion for new trial. The order is nonappealable and the purported appeal therefrom will be disposed of accordingly. [2] It appears from the various papers offered in support of the motion to dismiss that appellant neglected and failed to file, seasonably or otherwise, any request for a record to be used on the appeal from the judgment. Nevertheless, and in the absence of the pendency of any proceedings for a record, the [10 Cal. 2d 475] respondents, out of an abundance of caution or because of confusion, moved the trial court for an order "dismissing" all proceedings for the preparation of a record to be used on appeal and "dismissing all proceedings in said court on any appeal in the above entitled action". The order granting the requested relief followed substantially the language quoted from the motion requesting the same. Plaintiff duly noticed an appeal from the latter order and seasonably requested that a transcript be made up in support thereof. At this point, it should be stated that the motion and order last mentioned were undoubtedly intended merely to terminate proceedings for a record to be used on the principal appeal (though, as stated, no such proceedings had been instituted) and did not, as appellant incorrectly concludes from the peculiar language quoted therefrom, undertake to work a dismissal of her appeal from the judgment, a function without the jurisdiction of the trial court.

Shortly after appellant had noticed her appeal from the order terminating proceedings for a record, and after she had requested a transcript to be used on the latter appeal, the clerk and trial judge certified a transcript not only of the proceedings on the motion to terminate but a transcript of the entire trial record; that is to say, there has been certified and filed herein a copy of the judgment roll and of the testimony and proceedings upon the trial of the cause and upon the motion to terminate.

Approximately seven months after the filing herein of this complete transcript, the respondents noticed this motion to dismiss and offered in support thereof certain certificates of the clerk and trial judge in which they averred that they had respectively certified to the clerk's transcript of the judgment roll and to the reporter's transcript of the trial proceedings solely in connection with the second and later appeal from the order terminating proceedings. It is obvious that the clerk's transcript of the judgment roll and the reporter's transcript of the trial proceedings are unnecessary to and may not be employed in connection with the later appeal from the order terminating proceedings for which it is asserted they were certified. The disclosed "intention" in certifying to those transcripts for such later appeal is typical of the confusion that runs all through this cause. Aside from this, and in line with our policy to dispose of appeals on their merits, whenever possible, we are of the view that the certified transcripts [10 Cal. 2d 476] now before us should be considered in connection with the principal appeal from the judgment to which they are pertinent.

Our conclusion makes the appeal from the order terminating proceedings moot and it will be disposed of accordingly. In view of this we find it unnecessary to consider respondents' arguments directed at said appeal.

For the foregoing reasons, the appeals from the orders denying new trial and terminating proceedings for a record are, and each is, dismissed. The motion to dismiss the appeal from the judgment is denied, the time for briefs therein dating from the filing hereof.

Shenk, J., Houser, J., Seawell, J., Curtis, J., Edmonds, J., and Langdon, J., concurred.