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records of the section.--Pierce v. Works, 13. Under the provision in section 953a 171 Cal. 684, 154 Pac. 852.

of the Code of Civil Procedure, with refer5. The proceeding for a record under

ence to notice of entry of judgment, actual this section is an independent one; it is

notice established by satisfactory evidence an alternative method of preparing the rec

of record will start the statute in motion ord in lieu of a bill of exceptions. The pro

without the service of a formal written noceeding must be started within the time tice.—Hartfield v. Alderete, 26 Cal. App. fixed by law, and unless begun within said

604, 147 Pac. 991. time the transcript can not be obtained.

14. An appeal from a judgment will be Schmitt v. White, 172 Cal. 554, 158 Pac, 216.

dismissed for failure to file the transcript 6. The reporter's transcript of the pro

on the appeal as provided by section 953a ceedings at the trial can not be considered

of the Code of Civil Procedure within the on a review of the order of the trial court

time prescribed by law and the rules of the dismissing the motion for neglect and delay

appellate court, notwithstanding no written in prosecuting it, as distinguished from an

notice of entry of the judgment has been order denying the motion on the merits of

served upon the appellant, where he has enabling such a review to be had where

filed his notice of appeal without such writthe proceeding on motion for a new trial

ten notice.-French v. Macnider, 28 Cal. App. was pending at the date the change in the

67, 151 Pac. 371. law took effect.-Schmitt v. White, 172 Cal.

15. Transcript-As to what may be in554, 158 Pac. 216.

cluded in.-In preparing a transcript to be

used on an appeal from an order confirming Notice as to appeal and transcript.--A

a sale of real estate of a deceased person written notice of the entry of judgment

the appellant may in his notice to the clerk is not necessary to start running the time

request that the transcript shall contain for filing the notice to the clerk to prepare

not only the testimony and proceedings the transcript, when appellant has actual

taken and had at the hearing, but also knowledge thereof, and the filing of the

copies of the petition for sale, the order notice of appeal is conclusive evidence that

of sale, the return of sale, the notice of he knew of the judgment or order.-Fiske

hearing of the return, the bid received, v. Gosbey, 168 Cal. 334, 143 Pac. 611.

and the order of confirmation, and the trial 8. Mandamus will not lie to compel a

judge must certify to the correctness of the judge to settle, allow, and properly certify

transcript containing copies of such docua transcript on appeal attempted to be

ments.-Going v. Guy, 166 Cal. 279, 135 Pac. prepared under this section, for use on

1128. appeal from a judgment where the appel

16. Where there is no provision requiring lant has neglected for more than ten days

the making of a judgment-roll, the appelafter filing his notice to file with the clerk

lant may include in his notice to the clerk a notice requesting the preparation of the

a request that the documents relating to transcript.–Fiske v. Gosbey, 168 Cal. 334,

the order appealed from and corresponding 143 Pac. 611.

to the judgment-roll be included in the tran9. A notice to the clerk that the defen

script to be made up and prepared by the dant desires to appeal without stating that

reporter, and where requested the reporter he does appeal is ineffectual.-Michelson v.

must include them in the transcript.-Going City of Sacramento, 173 Cal. 108, 159 Pac.

v. Guy, 166 Cal. 279, 135 Pac. 1128. 431.

17. A transcript of proceedings upon an 10. The decisions which hold that under

appeal from an order granting a motion for section 941b of the Code of Civil Procedure

change of place of trial, where the proceedthe notice therein mentioned must be in

ings at the hearing were not taken down writing and that actual notice is not suffi

by a stenographic reporter, and the evidence cient to set the time running for the

submitted to the court consisted entirely of purposes stated in that section, are not

the files and records of the action, may be applicable to the provisions of section 953a.

prepared under section 953a of the Code of -French v, Macnider, 28 Cal. App. 67, 151

Civil Procedure and consist of copies of the Pac. 371.

records and files in the action including the 11. Service of notice.-An appeal from a papers presented and used upon the motion, judgment in action for damages for and it is the duty of the trial judge to slander of title will not be dismissed for authenticate the same.—Pierce v. Works, failure of the appealing defendants to serve 171 Cal. 684, 154 Pac. 852. the notice of appeal upon a defaulting co- 18. Where an appeal was under this secdefendant who has not appealed from the tion, intermediate orders and papers referred judgment taken and rendered against him to are clearly no part of the judgment-roll, by default, and whose interest can not in and as their integrity and purpose have not anywise be affected by a reversal of the been certified to by the trial judge, they judgment appealed from.-Fearon v. Fodera, can not be considered.—Dietz v. Scott, 27 169 Cal. 370, Ann. Cas. 1916D 312, 148 Pac. Cal. App. 320, 149 Pac. 775. 200.

19. Where the only transcript on appeal 12. Service of such notice on disclaiming from certain orders refusing to set aside defendants is unnecessary, where the judg- a judgment of default is one certified by ment appealed from is absolutely silent as the county clerk, and not by the judge, as to them.-Fearon v. Fodera, 169 Cal. 370, required by section 953a of the Code of Civil Ann. Cas. 1916D 312, 148 Pac. 200.

Procedure, the record on appeal is insuffi

an

cient.-Carignani v. Tortolani, 28 Cal. App. is not a sufficient ground of objection to the 44, 151 Pac. 172.

certification of the transcript, as there is 20. An order refusing to set aside a judg- no necessity for the incorporation of such ment of default can not be reviewed, where matters therein, where the only evidence the only transcript is one certified by the was the files and records of the action, and county clerk and not by the judge as re- such indorsements of admission of service quired by section 953a of the Code of Civil and filing as there were thereon.-Pierce v. Procedure.-Carignani v. Tortolani, 28 Cal. Works, 171 Cal. 684, 154 Pac. 852. App. 44, 151 Pac. 172.

26. A judge of a superior court is not 21. -Authentication

or
certification. —

justified in refusing to certify a transcript Prior to the enactment of this and the two of proceedings claimed to have been prefollowing sections the only way of authen- pared in accord with the provisions of secticating the record on appeal was by incor

tion 953a of the Code of Civil Procedure, porating the matter in a bill of exceptions for use on an appeal from an order granting or statement of the case. An additional a motion for change of place of trial to the method was provided by this section, which county of the defendants' alleged residence, declared that "in lieu of preparing and upon the ground that the proposed transettling a bill of exceptions" such matters script is not certified by the clerk or any one may be incorporated in such transcript pre

else as containing true or correct copies pared and certified in the manner provided. of the original documents, papers, files and But as

to matters not contained in the records, when no objection has been made judgment-roll, except the notice of appeal,

by the opposing attorneys on

any such authentication by the clerk is neither nec- ground.-Pierce v. Works, 171 Cal. 684, 154 essary nor sufficient, the section requiring, Pac. 852. in effect, that as to all such matters, the

27. On an appeal from a judgment taken transcript shall be settled by the judge,

under the alternative method, mandamus after notice to both parties, and in terms

will not lie to compel the trial judge to requiring that the judge shall certify to the certify to the correctness of the transcript, truth and correctness of the transcript.

where there was no phonographic report Where the papers and records have not been taken of the proceedings of the trial.-Bush so settled and certified they constitute no v. Allen, 172 Cal. 100, 155 Pac. 456. part of the record on appeal and can not

28. Mandamus will not lie to compel a be considered by the appellate court. — trial judge to certify to the correctness of Totten v. Barlow, 165 Cal. 378, 132 Pac. 749. the reporter's transcript of the proceedings

22. So far as the judgment-roll and the at the trial, which had been prepared under notice of appeal are concerned, no other section 953a of the Code of Civil Procedure authentication than the certificate of the for use on appeal from the judgment, where clerk or the stipulation of the attorneys

the right to a record under such section has ever been necessary, and with respect it existed prior to the amendment of to these papers the main effect of this August 8, 1915, had been lost by expiration and the two following sections seems to be

of time, notwithstanding a proceeding on to permit the use of typewritten instead of

motion of a new trial was pending at the printed copies.-Totten V. Barlow, 165 Cal. time such amendment became effective, and 378, 132 Pac. 749.

where it also appears that the bill of ex23. Whether the appeal is taken under ceptions upon which the notice of intention the new or old method in preparing the

to move for a new trial was made was record the appellant may follow the method properly refused settlement on account of prescribed herein, that is, the reporter's

the inexcusable default of the petitioner.transcript authenticated by the judge shall Schmitt v. White, 172 Cal. 554, 158 Pac. 216.

The typewritten transcript must be be used instead of a bill of exceptions.

29. be a part of the judgment-roll and may

certified by the trial court or the appeal Cortelyou v. Imperial Land Co., 166 Cal. 14, can not be considered.-Lewis v. Lapique, 134 Pac. 981.

26 Cal. App. 448, 147 Pac. 221. 24. “This section appears to be a pitfall

30. Where the transcript on appeal is for the unwary." On an appeal from a de- not certified to by the trial judge there is cree of distribution taken hereunder, the no proper record on appeal which may be appellate court, in the absence of any bill reviewed.-Carignani v. Tortolani, 28 Cal. of exceptions or transcript of the trial au- App. 44, 151 Pac. 172. thenticated by the trial judge, can not take notice of the contents of papers copied into

953b. the transcript, except those that may be 1. Undertaking to pay clerk's costs and were authenticated by the clerk alone. Construction.--This is meant solely for the The only papers which can thus be consid- protection of the clerk and stenographer, ered are those which would be the equiva- and instead of furnishing the undertaking lent of a judgment-roll in an ordinary civil the party may arrange personally with the action.--Estate of Gamble, 166 Cal. 253, 135 stenographer for his compensation.—Pierce Pac. 970.

v. Works, 171 Cal. 684, 154 Pac. 852. 25. The fact that the proposed transcript 2. The mere failure to file with the clerk does not contain the statements of the court the undertaking provided for by section made at the hearing of the motion for 953b of the Code of Civil Procedure to sechange of place of trial, or the objections cure the cost of preparing the transcript of counsel for plaintiff to granting the same, can not be urged as a good ground of objec.

as

as

tion to the certification of a transcript in 2. It is true that this section specifically fact prepared and delivered by the clerk to refers to appeals to the supreme court and the judge for settlement, since the giving to a district court of appeals, but the suof such undertaking may be waived by the preme court, in considering appeals from clerk.-Pierce v. Works, 171 Cal. 684, 154 the justice court, has approved the same Pac. 852.

practice as that expressly authorized in this 3. While there may be a stay bond and section.-Cohen v. Connick, 26 Cal. App. an undertaking to pay the costs on appeal 491, 147 Pac. 479. embodied in one instrument, only an under- 3. Causes should be permitted to be taking for the payment of costs is essential heard on their merits, where, in so ruling, to confer jurisdiction upon the appellate positive violence is not done to any rule of court.-Cohen v. Connick, 26 Cal. App. 491, procedure and practice, notwithstanding 147 Pac. 479.

formal defects in giving the undertaking

or otherwise perfecting the appeal.-Cohen 8 953c.

v. Connick, 26 Cal. App. 491, 147 Pac. 479. 1. Transmission of record on appeal- 4. This section refers to appeals to the Construction of section. — The dispensing supreme or district courts of appeal and with the printing of the record on appeal

is not applicable to appeals from justices' applies only where the appellant has availed courts. An undertaking on appeal from a himself of the method of appeal provided judgment rendered in the justice's court of by the two preceding sections.—Harpold v. San Bernardino township, county of San Slocum, 168 Cal. 364, 143 Pac. 609.

Bernardino, which refers to the judgment 2. Where the appellant has not complied one rendered by the justice's court of with these provisions the appellate court Los Angeles township, county of Los Anis not required to make more than a cursory

geles, and to the appeal as being to the examination of the typewritten record on superior court of the county of Los Angeles, file. “Indeed, we would be fully justified, is wholly insufficient to identify the appeal, under the provision above quoted, in re- and it is error to permit the amendment fusing to examine it at all."-O'Rourke v. of such undertaking by substituting the Skellenger, 169 Cal. 270, 146 Pac. 633.

proper township and county.--Brownell v. 3. The sufficiency of the evidence to sup- Superior Court, 32 Cal. App. 227, 162 Pac. port a particular point raised will not be 419. considered on appeal unless the evidence 5. When appeal dismissed. — An appeal therein is printed in the brief.—Town of from an order sustaining a demurrer to a St. Helena v. Merriam, 171 Cal. 135, 152 complaint without leave to amend must be Pac. 299.

dismissed, where the record does not show 4. If a party to an action expects to that any judgment was entered and does not take his appeal under the alternative contain any other notice of appeal, since method and have his record prepared ac- an order sustaining or overruling a demurcording to the procedure affecting that rer is not an appealable order.-Rickert v. method, then he must see to it that the Zoeger, 169 Cal. 399, 146 Pac. 894. official phonographic reporter is present at

6. Where more than forty days have the trial, in order that a transcript of the elapsed since an appeal has been perfected, evidence and proceedings may be furnished and no transcript has been filed or extenby the one officer whose duty it is to pre- sion of time given, the appeal will be dispare it.-Bush v. Allen, 172 Cal. 102, 155 Pac. missed motion of the respondents.456.

Palmer v. Woodruff, 30 Cal. App. 251, 157 5. Upon an appeal taken from a judg- Pac. 1137. ment under the alternative method, only 7. An appeal from a judgment must be the judgment-roll can be considered, where dismissed where no bill of exceptions or the transcript as to other matters is au- other record on appeal has been filed or thenticated by the clerk alone.—Bush presented within time, or request made to Allen, 172 Cal. 102, 155 Pac. 456.

the clerk to certify to a correct or any 6. No duty devolves the court to transcript of the record of the case, or any search the record for evidence to support transcript or record of the case filed in the the finding where the respondent neither appellate court.-Briles v. Paulson, 28 Cal. appeared nor presented any brief at the App. 461, 152 Pac. 942. hearing on appeal.-Mullia v. Ye Planry 8. When appeal not dismissed.--An apBuilding Co., 32 Cal. App. 6, 161 Pac. 1008. peal from an order denying a new trial in

such an action will not be dismissed for

failure to serve the notice of appeal upon DISMISSING APPEAL.

the codefendants of the appellants.-Fearon

v. Fodera, 169 Cal. 370, Ann, Cas. 1916D 312, 1-4. Construction of section.

148 Pac. 200. 5-7. When appeal dismissed.

9. An appeal taken by the state from a 8, 9. When appeal not dismissed.

judgment rendered against it will not be 1. Construction of section. — Where the dismissed for its failure to file its points undertaking is not merely insufficient but and authorities within the time prescribed invalid for

any purpose the objection by rule II, subdivision 4, of the supreme thereto can not be obviated by filing a new court, where the appellant was ready to file one under this section.—Theisen v. Matthai, its opening brief at the time of the hear165 Cal. 249, 139 Pac. 747.

ing of the motion to dismiss the appeal,

on

on

8 954,

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8956.

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 non. suit 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 apr from the judgment.-Wiley B. Allen Co. v. Wood, 32 Cal. App. 76, 162 Pac. 121.

8 957. 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 trivolous 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.

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CHAPTER II.

APPEALS TO SUPREME COURT.

8 963. WHEN APPEAL MAY BE TAKEN. An appeal may be taken from a superior court in the following cases:

1. From a final judgment entered in an action, or special proceeding, commenced in a superior court, or brought into a superior court from another court;

2. From an order granting a new trial in an action or proceeding tried by a jury where such trial by jury is a matter of right, or granting or dissolving an injunction, or refusing to grant or dissolve an injunction, or appointing a receiver, or dissolving or refusing to dissolve an attachment, or changing or refusing to change a place of trial, from any special order made after final judgment, from any interlocutory judgment, order, or decree, hereafter made or entered in actions to redeem real or personal property from a mortgage thereof, or lien thereon, determining such right to redeem and directing an accounting; and from such interlocutory judgment in actions for partition as determines the rights and interests of the respective parties and directs partition to be made, and interlocutory decrees of divorce.

3. From a judgment or order granting or refusing to grant, revoking or refusing to revoke, letters testamentary, or of administration, or of guardianship; or admitting or refusing to admit a will to probate, or against or in favor of the validity of a will, or revoking or refusing to revoke the probate thereof; or against or in favor of setting apart property, or making an allowance for a widow or child; or against or in favor of directing the partition, sale or conveyance of real property, or settling an account of an executor, administrator or guardian, or refusing, allowing or directing the distribution or partition of an estate, or any part thereof, or the payment of a debt, claim, or legacy, or distributive share; or confirming or refusing to confirm a report of an appraiser or appraisers setting apart a homestead; from an order, judgment or decree fixing inheritance tax or determining that no inheritance tax is due.

History: Original section enacted March 11, 1872, re-enactment of § 347, Practice Act, as amended 1854, Stats, and Amdts. 1854, p. 84; repealed and present section enacted March 28, 1880, Code Amdts. 1880 (C. C. P. pt.), p. 14; amended March 19, 1889, Stats, and Amdts. 1889, p. 324; March 27, 1897, Stats, and Amdts. 1897, p. 209; February 14, 1899, Stats, and Amdts. 1899, p. 8; February 28, 1901, Stats. and Amdts. 1900-1, p. 85; April 24, 1915, Stats, and Amdts. 1915, p. 209; May 17, 1917, Stats, and Amdts. 1917, p. 624. In effect July 27, 1917.

as

APPEALS TO SUPREME COURT.

quent to such date.-Woodruff v. Colyear, 1. Construction of section-As to what

172 Cal. 440, 156 Pac. 475. appealable under.

3. -Subdivision 1.-A judgment upon de2. —Amendment of 1915.

murrer in a suit in equity to avoid the 3-6. -Subdivision 1.

effect of a deed brought against the ad7-9. -Subdivision 2.

ministrator of the estate of the deceased 10, 11. -Subdivision 3.

grantor, claimants to the title under subse12–14. Injunctions (subd. 2).

quent conveyances and their mortgagees, 15-17. Orders denying new trial (subd. 2). dismissing the action as to the subsequent

claimants, and leaving it still pending and 1. Construction of section-As to what

undetermined to appealable under.-An order denying a mo

the mortgagees and tion to vacate a default is not appealable,

the administrator, is a final judgment from

which an appeal will lie.-Baxter v. Boege, not being one of those enumerated herein.

173 Cal. 589, 160 Pac. 1072. An attempt to appeal from a nonappealable order does not give the appellate court jur

4. An order overruling a motion to reopen isdiction or authority to review it.—Sher- case before decision rendered, is not an man v. Standard Mines Co., 166 Cal. 524, 137

appealable order, but is reviewable on apPac. 249.

peal from the judgment and the order deny2. -Amendment of 1915. This section ing new trial when the proceeding on the as amended is applicable to every case

motion is incorporated in the bill of excepwhere such order was made subsequent to

tions.-Phenegar v. Paolini, 27 Cal. App. 381, the date of taking effect of the amendment,

149 Pac. 1008. regardless of whether the proceedings for 5. An appeal taken from a judgment dis.. a new trial were initiated prior or subse- missing an amended complaint in interven

a

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