records of the section.-Pierce v. Works, 171 Cal. 684, 154 Pac. 852.

a

5. The proceeding for record under this section is an independent one; it is an alternative method of preparing the record in lieu of a bill of exceptions. The proceeding must be started within the time fixed by law, and unless begun within said time the transcript can not be obtained.Schmitt v. White, 172 Cal. 554, 158 Pac. 216.

6. The reporter's transcript of the proceedings at the trial can not be considered on a review of the order of the trial court dismissing the motion for neglect and delay in prosecuting it, as distinguished from an order denying the motion on the merits of enabling such a review to be had where the proceeding on motion for a new trial was pending at the date the change in the law took effect.-Schmitt v. White, 172 Cal. 554, 158 Pac. 216.

7. Notice as to appeal and transcript.—A written notice of the entry of judgment is not necessary to start running the time for filing the notice to the clerk to prepare the transcript, when appellant has actual knowledge thereof, and the filing of the notice of appeal is conclusive evidence that he knew of the judgment or order.-Fiske v. Gosbey, 168 Cal. 334, 143 Pac. 611.

be

8. Mandamus will not lie to compel a judge to settle, allow, and properly certify a transcript on appeal attempted to prepared under this section, for use on appeal from a judgment where the appellant has neglected for more than ten days after filing his notice to file with the clerk a notice requesting the preparation of the transcript.-Fiske v. Gosbey, 168 Cal. 334, 143 Pac. 611.

9. A notice to the clerk that the defendant desires to appeal without stating that he does appeal is ineffectual.-Michelson v. City of Sacramento, 173 Cal. 108, 159 Pac. 431.

10. The decisions which hold that under section 941b of the Code of Civil Procedure the notice therein mentioned must be in writing and that actual notice is not sufficient to set the time running for the purposes stated in that section, are not applicable to the provisions of section 953a. -French v. Macnider, 28 Cal. App. 67, 151 Pac. 371.

11. Service of notice.—An appeal from a judgment in an action for damages for slander of title will not be dismissed for failure of the appealing defendants to serve the notice of appeal upon a defaulting codefendant who has not appealed from the judgment taken and rendered against him by default, and whose interest can not in anywise be affected by a reversal of the judgment appealed from.-Fearon v. Fodera, 169 Cal. 370, Ann. Cas. 1916D 312, 148 Pac. 200.

12. Service of such notice on disclaiming defendants is unnecessary, where the judgment appealed from is absolutely silent as to them.-Fearon v. Fodera, 169 Cal. 370, Ann. Cas. 1916D 312, 148 Pac. 200.

13. Under the provision in section 953a of the Code of Civil Procedure, with reference to notice of entry of judgment, actual notice established by satisfactory evidence of record will start the statute in motion without the service of a formal written notice. Hartfield v. Alderete, 26 Cal. App. 604, 147 Pac. 991. 14. An appeal from a judgment will be dismissed for failure to file the transcript on the appeal as provided by section 953a of the Code of Civil Procedure within the time prescribed by law and the rules of the appellate court, notwithstanding no written notice of entry of the judgment has been served upon the appellant, where he has filed his notice of appeal without such written notice.-French v. Macnider, 28 Cal. App. 67, 151 Pac. 371.

15.

Transcript-As to what may be included in.—In preparing a transcript to be used on an appeal from an order confirming a sale of real estate of a deceased person the appellant may in his notice to the clerk request that the transcript shall contain not only the testimony and proceedings taken and had at the hearing, but also copies of the petition for sale, the order of sale, the return of sale, the notice of hearing of the return, the bid received, and the order of confirmation, and the trial judge must certify to the correctness of the transcript containing copies of such documents.-Going v. Guy, 166 Cal. 279, 135 Pac.

1128.

16. Where there is no provision requiring the making of a judgment-roll, the appellant may include in his notice to the clerk a request that the documents relating to the order appealed from and corresponding to the judgment-roll be included in the transcript to be made up and prepared by the reporter, and where requested the reporter must include them in the transcript.-Going v. Guy, 166 Cal. 279, 135 Pac. 1128.

17. A transcript of proceedings upon an appeal from an order granting a motion for change of place of trial, where the proceedings at the hearing were not taken down by a stenographic reporter, and the evidence submitted to the court consisted entirely of the files and records of the action, may be prepared under section 953a of the Code of Civil Procedure and consist of copies of the records and files in the action including the papers presented and used upon the motion, and it is the duty of the trial judge to authenticate the same.-Pierce v. Works, 171 Cal. 684, 154 Pac. 852.

18. Where an appeal was under this section, intermediate orders and papers referred to are clearly no part of the judgment-roll, and as their integrity and purpose have not been certified to by the trial judge, they can not be considered.-Dietz v. Scott, 27 Cal. App. 320, 149 Pac. 775.

19. Where the only transcript on appeal from certain orders refusing to set aside a judgment of default is one certified by the county clerk, and not by the judge, as required by section 953a of the Code of Civil Procedure, the record on appeal is insuffi

or

21. -Authentication certification. Prior to the enactment of this and the two following sections the only way of authenticating the record on appeal was by incorporating the matter in a bill of exceptions or statement of the case. An additional method was provided by this section, which declared that "in lieu of preparing and settling a bill of exceptions" such matters may be incorporated in such transcript prepared and certified in the manner provided. But as to matters not contained in the judgment-roll, except the notice of appeal, authentication by the clerk is neither necessary nor sufficient, the section requiring, in effect, that as to all such matters, the transcript shall be settled by the judge, after notice to both parties, and in terms requiring that the judge shall certify to the truth and correctness of the transcript. Where the papers and records have not been so settled and certified they constitute no part of the record on appeal and can not be considered by the appellate court. — Totten v. Barlow, 165 Cal. 378, 132 Pac. 749. 22. So far as the judgment-roll and the notice of appeal are concerned, no authentication than the certificate of the clerk or the stipulation of the attorneys has ever been necessary, and with respect to these papers the main effect of this and the two following sections seems to be to permit the use of typewritten instead of printed copies.-Totten v. Barlow, 165 Cal. 378, 132 Pac. 749.

other

23. Whether the appeal is taken under the new or old method in preparing the record the appellant may follow the method prescribed herein, that is, the reporter's transcript authenticated by the judge shall be a part of the judgment-roll and may be used instead of a bill of exceptions.Cortelyou v. Imperial Land Co., 166 Cal. 14, 134 Pac. 981.

24. "This section appears to be a pitfall for the unwary." On an appeal from a decree of distribution taken hereunder, the appellate court, in the absence of any bill of exceptions or transcript of the trial authenticated by the trial judge, can not take notice of the contents of papers copied into the transcript, except those that may and were authenticated by the clerk alone. The only papers which can thus be considered are those which would be the equivalent of a judgment-roll in an ordinary civil action.-Estate of Gamble, 166 Cal. 253, 135 Pac. 970.

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25. The fact that the proposed transcript does not contain the statements of the court made at the hearing of the motion for change of place of trial, or the objections of counsel for plaintiff to granting the same,

is not a sufficient ground of objection to the certification of the transcript, as there is no necessity for the incorporation of such matters therein, where the only evidence was the files and records of the action, and such indorsements of admission of service and filing as there were thereon.-Pierce v. Works, 171 Cal. 684, 154 Pac. 852.

26. A judge of a superior court is not justified in refusing to certify a transcript of proceedings claimed to have been prepared in accord with the provisions of section 953a of the Code of Civil Procedure, for use on an appeal from an order granting a motion for change of place of trial to the county of the defendants' alleged residence, upon the ground that the proposed transcript is not certified by the clerk or any one else as containing true or correct copies of the original documents, papers, files and records, when no objection has been made any by the opposing attorneys on such ground.-Pierce v. Works, 171 Cal. 684, 154 Pac. 852. 27. On an appeal from a judgment taken under the alternative method, mandamus will not lie to compel the trial judge to certify to the correctness of the transcript, where there was no phonographic report taken of the proceedings of the trial.-Bush v. Allen, 172 Cal. 100, 155 Pac. 456.

28.

Mandamus will not lie to compel a trial judge to certify to the correctness of the reporter's transcript of the proceedings at the trial, which had been prepared under section 953a of the Code of Civil Procedure for use on appeal from the judgment, where the right to a record under such section as it existed prior to the amendment of August 8, 1915, had been lost by expiration of time, notwithstanding a proceeding on motion of a new trial was pending at the time such amendment became effective, and where it also appears that the bill of exceptions upon which the notice of intention to move for a new trial was made was properly refused settlement on account of the inexcusable default of the petitioner.Schmitt v. White, 172 Cal. 554, 158 Pac. 216. 29. The typewritten transcript must be certified by the trial court or the appeal can not be considered.-Lewis v. Lapique, 26 Cal. App. 448, 147 Pac. 221.

30. Where the transcript on appeal is not certified to by the trial judge there is no proper record on appeal which may be reviewed.-Carignani v. Tortolani, 28 Cal. App. 44, 151 Pac. 172.

§ 953b.

1. Undertaking to pay clerk's costsConstruction. This is meant solely for the protection of the clerk and stenographer, and instead of furnishing the undertaking the party may arrange personally with the stenographer for his compensation.-Pierce v. Works, 171 Cal. 684, 154 Pac. 852.

2. The mere failure to file with the clerk the undertaking provided for by section 953b of the Code of Civil Procedure to secure the cost of preparing the transcript can not be urged as a good ground of objec

tion to the certification of a transcript in fact prepared and delivered by the clerk to the judge for settlement, since the giving of such undertaking may be waived by the clerk.-Pierce v. Works, 171 Cal. 684, 154 Pac. 852.

3. While there may be a stay bond and an undertaking to pay the costs on appeal embodied in one instrument, only an undertaking for the payment of costs is essential to confer jurisdiction upon the appellate court.-Cohen v. Connick, 26 Cal. App. 491, 147 Pac. 479.

$ 953c.

1. Transmission of record on appealConstruction of section. The dispensing with the printing of the record on appeal applies only where the appellant has availed himself of the method of appeal provided by the two preceding sections.-Harpold v. Slocum, 168 Cal. 364, 143 Pac. 609.

2. Where the appellant has not complied with these provisions the appellate court is not required to make more than a cursory examination of the typewritten record on file. "Indeed, we would be fully justified, under the provision above quoted, in refusing to examine it at all."-O'Rourke v. Skellenger, 169 Cal. 270, 146 Pac. 633.

3. The sufficiency of the evidence to support a particular point raised will not be considered on appeal unless the evidence therein is printed in the brief.-Town of St. Helena v. Merriam, 171 Cal. 135, 152 Pac. 299.

4. If a party to an action expects to take his appeal under the alternative method and have his record prepared according to the procedure affecting that method, then he must see to it that the official phonographic reporter is present at the trial, in order that a transcript of the evidence and proceedings may be furnished by the one officer whose duty it is to prepare it.-Bush v. Allen, 172 Cal. 102, 155 Pac. 456.

5. Upon an appeal taken from a judgment under the alternative method, only the judgment-roll can be considered, where the transcript as to other matters is authenticated by the clerk alone.-Bush Allen, 172 Cal. 102, 155 Pac. 456.

V.

to

6. No duty devolves on the court search the record for evidence to support the finding where the respondent neither appeared nor presented any brief at the hearing on appeal.-Mullia v. Ye Planry Building Co., 32 Cal. App. 6, 161 Pac. 1008. § 954.

DISMISSING APPEAL.

1-4. Construction of section.
5-7. When appeal dismissed.
8, 9. When appeal not dismissed.

1. Construction of section. Where the undertaking is not merely insufficient but invalid for any purpose the objection thereto can not be obviated by filing a new one under this section.-Theisen v. Matthai, 165 Cal. 249, 139 Pac. 747.

2. It is true that this section specifically refers to appeals to the supreme court and to a district court of appeals, but the supreme court, in considering appeals from the justice court, has approved the same practice as that expressly authorized in this section. Cohen v. Connick, 26 Cal. App. 491, 147 Pac. 479.

3. Causes should be permitted to be heard on their merits, where, in so ruling, positive violence is not done to any rule of procedure and practice, notwithstanding formal defects in giving the undertaking or otherwise perfecting the appeal.-Cohen v. Connick, 26 Cal. App. 491, 147 Pac. 479.

4. This section refers to appeals to the supreme or district courts of appeal and is not applicable to appeals from justices' courts. An undertaking on appeal from a judgment rendered in the justice's court of San Bernardino township, county of San Bernardino, which refers to the judgment as one rendered by the justice's court of Los Angeles township, county of Los Angeles, and to the appeal as being to the superior court of the county of Los Angeles, is wholly insufficient to identify the appeal, and it is error to permit the amendment of such undertaking by substituting the proper township and county.-Brownell v. Superior Court, 32 Cal. App. 227, 162 Pac. 419.

5. When appeal dismissed. An appeal from an order sustaining a demurrer to a complaint without leave to amend must be dismissed, where the record does not show that any judgment was entered and does not contain any other notice of appeal, since an order sustaining or overruling a demurrer is not an appealable order.-Rickert v. Zoeger, 169 Cal. 399, 146 Pac. 894.

6. Where more than forty days have elapsed since an appeal has been perfected, and no transcript has been filed or extension of time given, the appeal will be dismissed on motion of the respondents.Palmer v. Woodruff, 30 Cal. App. 251, 157 Pac. 1137.

7. An appeal from a judgment must be dismissed where no bill of exceptions or other record on appeal has been filed or presented within time, or request made to the clerk to certify to a correct or any transcript of the record of the case, or any transcript or record of the case filed in the appellate court.-Briles v. Paulson, 28 Cal. App. 461, 152 Pac. 942.

8.

When appeal not dismissed.-An appeal from an order denying a new trial in such an action will not be dismissed for failure to serve the notice of appeal upon the codefendants of the appellants.-Fearon v. Fodera, 169 Cal. 370, Ann. Cas. 1916D 312, 148 Pac. 200.

9. An appeal taken by the state from a judgment rendered against it will not be dismissed for its failure to file its points and authorities within the time prescribed by rule II, subdivision 4, of the supreme court, where the appellant was ready to file its opening brief at the time of the hearing of the motion to dismiss the appeal,

and at such time made a sufficient showing of excuse for its default.-Mono County Irr. Co. v. State, 31 Cal. App. 719, 162 Pac. 641.

§ 956.

1. What reviewable on appeal. Where the trial court, in granting a new trial, states in the order that it is denied so far as the sufficiency of the evidence is concerned, that particular ground is excluded from consideration upon appeal from the order, but with respect to any other ground advanced in support of the motion, the decision of the trial court that the new trial was refused with respect to any one of them is not binding upon the appellate court, and, upon appeal, such question may be considered.-Steil v. Sun Ins. Office, 171 Cal. 795, 155 Pac. 72.

2. The supreme court may not pass upon the weight of evidence.-Cox v. Schnerr, 172 Cal. 371, 156 Pac. 509.

3. The evidence taken upon the trial of an action for services performed can not be reviewed upon an appeal taken from the judgment, where the purported statement of the case containing the evidence is not shown by the record to have ever been settled by the trial judge, or to have attached thereto any stipulation authorizing the taking of notice of its contents by the appellate court.-Yount v. Arakalian Bros. Co., 26 Cal. App. 472, 147 Pac. 467.

4. An order vacating a judgment of nonsuit being made after final judgment is appealable, and where no direct appeal was taken therefrom, the insertion by the appellant in his notice of appeal from a subsequent judgment in favor of the plaintiff, that the appeal was taken from "every interlocutory and intermediate order made in said case adverse to said defendant" does not bring before the appellate court for review the order vacating the nonsuit and can not be reviewed.-Hughes v. Chung Sun Tung Co., 28 Cal. App. 371, 154 Pac. 299.

5. An order overruling a demurrer to an amended complaint and a refusal to strike out portions thereof is not reviewable on an appeal from an order denying a new trial.— Tingey v. Callahan Const. Co., 28 Cal. App. 777, 154 Pac. 28.

6. The sufficiency of the pleadings to support the judgment, or the sufficiency of the findings of fact to sustain the conclusions of law, can not be considered on an appeal from an order denying a new trial; the appellate court is limited in its review to the grounds upon which the new trial was asked.-Bloxham v. Tehama County Tel. Co., 29 Cal. App. 326, 155 Pac. 634.

7. While there is no longer an appeal from an order denying a motion for a new trial, yet the points made before the trial court in support of a motion for a new trial may be reviewed on an appeal from the judgment.-Wiley B. Allen Co. v. Wood, 32 Cal. App. 76, 162 Pac. 121.

§ 957.

REMEDIAL POWERS OF APPELLATE COURT.

1, 2. Construction of section.

3-9. Damages for groundless and frivolous appeals.

1.

Construction of section.-An appellant who can not obtain a stay of proceedings is not without remedy in case he secures a reversal or modification of the judgment, this being provided herein.-Southern Pac. Co. v. Superior Court, 167 Cal. 250, 139 Pac. 69.

2. Where two days after the holder of a mortgage appealed from a judgment in foreclosure declaring the lien superior to his mortgage the property was sold under the judgment, the appellant has his remedy by action as provided for in this section.Sunset Lumber Co. v. Bachelder, 167 Cal. 512, Ann. Cas. 1916B 664, 140 Pac. 35.

3. Damages for groundless and frivolous appeals. Where an appeal is taken for no other motive than of keeping alive an action on a claim utterly without foundation, the award of damages in the sum of one hundred dollars on account thereof is proper.Lapique v. Agoure, 170 Cal. 79, 148 Pac. 517. 4. Where the supreme court can conceive of no object the appellant could have had in taking an appeal, unless to obtain undue delay, the case is a proper one for the imposition of damages. Roberts v. Buckingham, 172 Cal. 458, 156 Pac. 1018.

5. While the appeal may be without merit even to such a degree as to render it frivolous, nevertheless, when the court can not say that the appellant, acting as his own attorney, was cognizant of such fact, it can not be said that he took the appeal for delay.-Dunn v. Warden, 28 Cal. App. 202, 151 Pac. 671.

6. Where the decisions of the supreme court are flatly adverse to the appellant's contention, and his only claim is that an obviously immaterial amendment of a code section has altered the established rule, it is proper to impose upon him one hundred dollars as damages.-Weinstock-Nichols Co. v. Courtney, 26 Cal. App. 445, 147 Pac. 218. 7. Where an appeal is manifestly destitute of merit, the court is warranted in penalizing the appellant by the imposition of damages for a frivolous appeal taken purely for delay.-Johnson v. Dixon Farms Co., 29 Cal. App. 52, 155 Pac. 136.

8.

Damages in the sum of fifty dollars may be awarded against an appellant, in addition to costs where the appeal is groundless and frivolous, and apparently taken for purposes of delay.-Crofford v. Crofford, 29 Cal. App. 662, 157 Pac. 561.

9. An appeal taken for no other purpose than to delay the enforcement of the judgment in an action on a mortgage for five hundred dollars will carry damages to the appellant in the sum of fifty dollars.-Moore v. Lauff, 30 Cal. App. 452, 158 Pac. 557.