HENRY RUBIN, Respondent, v. PLATT MUSIC CO. (a Corporation), Appellant

[Civ. No. 5378. Second Appellate District, Division Two. November 23, 1926.] HENRY RUBIN, Respondent, v. PLATT MUSIC CO. (a Corporation), Appellant. Appeal—Notice of Request for Transcript—Default—Settlement of Transcript — Motion to Dismiss Appeal — Presumptions.—Where the transcript of the testimony has been settled by the trial judge within the six months’ period from the default of the appellant in giving notice of the request for such transcript, on a motion to dismiss the appeal it must be presumed either that the objections to the settlement of the transcript were raised, as they should have been, in the trial court, and the settlement was the equivalent of relief from that default, or that the respondent waived the default by failure to object in the trial court. Id.—Dismissal—Transcript—Record.—A motion to dismiss an appeal on the ground that the appellant did not give notice of the request for a transcript of the testimony within the required time will be denied where the appellant’s opening brief is on file, together with the clerk’s transcript, including those papers going to make up the judgment-roll, notice of appeal, and the notice to the clerk to prepare transcript, and points are raised in plaintiff’s opening brief which would not necessitate the reporter’s transcript, the merits of which points cannot be determined on a motion to dismiss the appeal because such a determination would effect an unwarranted advancement of the case. (1) 4 C. J., p. 793, n. 64 New. (2) 4 O. J., p. 472, n. 12. 2. See 2 Cal. Jur. 744. MOTION to dismiss appeal from a judgment of the Superior Court of Los Angeles County. K. S. Mahon, Judge. Motion denied. The facts are stated in the opinion of the court. Peyton H. Moore and Glen E. Huntsberger for Appellant. Harry Sherr for Respondent. [MAJORITY — THOMPSON, J.] THOMPSON, J. This is a motion to dismiss the appeal on the ground that no transcript or bill of exceptions was filed within the time required. It appears that judgment was entered on February 16, 1926, and notice of entry thereof given on the same day; that notice of intention to move for a new trial was filed within the time and on February 26, 1926; that nothing further was done with respect to the motion for a new trial and therefore it was denied by lapse of time on April 16, 1926; on March 3, 1926, the appellant gave notice that it appealed; the motion to dismiss the appeal was served on May 13, 1926, and came on for hearing on the fourteenth day of June, 1926. In the meantime, and on June 5, 1926, both the clerk’s transcript and the reporter’s transcript were filed in this court. The two transcripts having been filed prior to the time that the motion came on for hearing, the real ground of the motion to dismiss is that the appellant did not give notice of the request for a transcript of the testimony within ten days after notice of the entry of the judgment, or within ten days after motion for a new trial was denied by lapse of time. In the case of In re Barney, 191 Cal. 18 [214 Pac. 853], it is said: “It has been frequently held and is now thoroughly established that the failure to give the notice to prepare the typewritten record for use on appeal is not a ground for a dismissal of the appeal. If, however, it appears from the entire record that, in the absence of a properly authenticated reporter’s transcript, there is no record upon which a reversal of the decision could be predicated, then the proper course is to move for an affirmance of the judgment upon that ground, and upon such application the court will consider the question as to whether or not the record was properly prepared.” And in Mill Valley v. Massachusetts etc. Co., 189 Cal. 52 [207 Pac. 253], it is held that diligence in the preparation of the record on appeal should ordinarily be subject to investigation and determination in the trial court rather than in the appellate court. In re Barney, supra, would be decisive of the question were it not for the fact that in that case the transcript was settled more than six months after the default of the appellant in giving his notice for the preparation of. the transcript, which delay was considered to rob the trial court of its jurisdiction to relieve the appellant of his default. But where, as here, the transcript has been settled by the trial' judge within the six- months’ period, it must be presumed either that the objections to its settlement were raised, as they should have been, in the trial court, and the settlement was the equivalent of relief from that default, or that the respondent waived the default by failure to object in the trial court. The latter would seem to be the situation here as is evidenced by the stipulation of respondent to the correctness of the transcript. There is another feature of this case, however, which is determinative of the motion. The appellant’s opening brief is on file, together with the clerk’s transcript, including those papers going to make up the judgment-roll, notice of appeal, and the notice to the clerk to prepare transcript. Prom an inspection of the plaintiff’s opening brief we observe that points are raised which would not necessitate the reporter’s transcript, the merits of which we cannot determine at this time because a determination of the merits would effect an unwarranted advancement of the ease. Under a similar state of facts the supreme court, in the case of Weaver v. Frickett, 196 Cal. 401 [238 Pac. 87], refused to dismiss the appeal on the ground that no bill of exceptions or reporter’s transcript was required. What is said there is applicable to the situation here. Motion denied. Works, P. J., and Craig, J., concurred.