Opinion
Appeal from a judgment of the Superior Court of Stanislaus County.
COUNSEL:
D. S. Terry, for Appellant.
Stanton L. Carter, for Respondent.
JUDGES: In Bank. Paterson, J., did not participate in the decision of the motion.
OPINION
THE COURT [19 P. 3] Rule 3 of this court provides simply that if a transcript be on file at the time the notice of motion was given, that fact shall be sufficient answer to the motion to dismiss; but it does not follow that no answer can be made at any subsequent time. The mere fact that the transcript is on file at the time the notice of motion was given is all the showing the appellant is required to make to defeat the motion to dismiss; but if the transcript be not filed until after the notice of motion has been given, something more is required. The filing of the transcript does not cure the default or bar the relief sought by the motion. Circumstances going to excuse the appellant's default may be shown by the appellant by affidavit, the sufficiency of which must be determined by the court. The rule was thus construed in Welch v. Kenney , 47 Cal. 414. On the 17th of April, 1883, respondent's counsel served upon counsel for appellant a notice that he would, on Friday, the fourth day of May, 1888, or as soon thereafter as he could be heard, move this court to dismiss the appeal herein. At the time said motion to dismiss was heard, the transcript was on file herein, together with affidavits on behalf of respondent and appellant. The circumstances shown, we think, are sufficient to excuse the default of counsel for appellant in preparing and serving and filing the transcript on appeal as required by the rules of this court. The transcript [19 P. 4] was left with Mr. Bennett in time to be served, and the statement of the latter undoubtedly misled counsel for appellant, who believed that the transcript had been left at the office of counsel for respondent for his certificate of its correctness. Motion to dismiss appeal denied.