Miller v. Paradise Co. Inc.

HARRY S. MILLER, Respondent, v. PARADISE CO. INC. (a Corporation) et al., Defendants; FINANCE AND DISCOUNT CORPORATION (a Corporation), Appellant.

COUNSEL

John E. Dalton for Appellant.

Samuel A. Miller and Paul J. Ziegler for Respondent.

OPINION

York, J.

Appellant states that the sole question involved in this appeal is: "Did the trial court err in granting a motion for an order to terminate proceedings for preparation of a record on appeal, where it appears that delay in preparing said report is due to the failure of court officials to keep proper record of all proceedings?" Respondent meets this with his statement of the question involved, as follows: "Did the trial court err in granting respondent's motion for an order to terminate proceedings for preparation of a record on appeal, where the time for the preparation and filing of such record had long since passed?" [9 Cal. App. 2d 664]

[1] The facts in the case are that, on the trial of the cause which occurred on two widely separated days, two different reporters were employed to take down the proceedings, for the reason that one of such reporters was available, while the reporter who acted upon the first occasion was not available and could not be located to make up a complete record. Prior to the termination of the proceeding in the trial court, appellant never made the arrangement, as provided in section 953a of the Code of Civil Procedure, for the preparation either by the clerk as to the clerk's transcript, or by the reporter of such reporter's transcript as was available; and took no measures, after his discovery that the record of one reporter was not available, to supply any bill of exceptions or statement of the missing record. An affidavit was filed on behalf of appellant setting forth certain details and reasons therefor, but such affidavit does not show that proper arrangements were made with the reporter, who took down part of the proceedings, to prepare his part of the record at any time, and there is nothing to show that the clerk's record was ever prepared. The clerk's transcript on file in this matter is merely a transcript of the affidavit of John E. Dalton, counsel for appellant; minute order granting motion to terminate proceedings on appeal; notice of appeal; notice of entry of judgment; notice of motion to terminate proceedings with affidavit of service by mail attached, and notice to clerk to prepare transcript. No copies of the pleadings are presented, and there is nothing in the affidavit or record before us to show why a bill of exceptions or a statement of the case could not have been prepared within the time provided by law.

We can see no error committed by the trial court in making the order terminating the proceedings. It was proper for the trial court to make such order, as no diligence whatever was shown as to the preparation of such part of the record as was available to appellant.

The order appealed from is affirmed.

Houser, P. J., and Doran, J., concurred.