Brown v. Guy

• Decision Date: 20 January 1959
• Citation: 167 Cal.App.2d 211,334 P.2d 67
• Parties: Muriel M. BROWN, Plaintiff and Appellant, v. Ralph I. GUY, doing business as Rigko Offices, and The Rig Company, Defendants. Ralph I. Guy, Respondent. Civ. 23388.
• Court: California Court of Appeals Court of Appeals

Page 67

334 P.2d 67

167 Cal.App.2d 211

Muriel M. BROWN, Plaintiff and Appellant, v. Ralph I. GUY, doing business as Rigko Offices, and The Rig Company, Defendants Ralph I. Guy, Respondent.

Civ. 23388.

District Court of Appeal, Second District, Division 1, California.

Jan. 20, 1959.

Elmer Patrick Friel, Los Angeles, for appellant.

Carl B. Sturzenacker, DeForrest Home and Albert Hampton, Los Angeles, for respondent.

LILLIE, Justice.

Respondent has moved to dismiss the pending appeal on the ground of certain defects in the record heretofore filed, and noncompliance with pertinent time provisions of the Rules on Appeal.

The cause was previously before this court which affirmed an order granting a new trial (144 Cal.App.2d 659, 301 P.2d 413). Following a second adverse judgment and the denial of her motion for a new trial, appellant seasonably filed her notice of appeal. Thirty-four days later, on November 26, 1957, appellant filed a 'Notice to Clerk of the Superior Court to Prepare Clerk's Transcript and for Preparation of Reporter's Transcript on Appeal.' Therein reference was made to the previous appeal and to a stipulation entered into by counsel prior to the second trial, and approved by pre-trial order, 'whereby * * * testimony and exhibits introduced at the first trial of said cause could be introduced by both parties at the second trial of said cause by designating, one to the other, such portions of the said testimony desired to be read at the second trial from the said reporter's transcript on appeal * * *.' Such testimony was introduced at the second trial in this manner.

Specifying her reliance on Rule 11, Rules on Appeal, appellant then designated in the foregoing 'Notice' the portions of the prior record which she desired incorporated by reference, including the oral testimony at the first trial read into evidence by stipulation as aforementioned, and the entire contents of the clerk's transcript in the first case. She further requested a clerk's transcript of the proceedings on the second trial, designating the papers and records desired; and '(p)ursuant to Rule 7, Rules on Appeal' gave notice that 'plaintiff will prepare and set forth the oral proceedings by a settled statement of all of the rest of the oral proceedings at said second trial * * * the said statement to be in the form of a condensed narrative statement of all the foregoing.' The narrative statement was not served on respondent until the following June and was settled by the trial court on August 12, 1958. After securing an extension of time therefore, appellant filed her opening brief on November 3, 1958; thereafter, on November 25, 1958, respondent made this motion to dismiss. Written opposition to the motion was filed by appellant, including a request that she be relieved from any default found to exist.

Respondent contends that (1) Rule 11(b), added in 1951, does not authorize the filing of a record partially in the form of a settled statement and partially in the form of a reporter's transcript incorporated by reference; (2) appellant's notice of election to proceed by settled statement was not served within the time required by Rule 7(a); and (3) contrary to Rule 45 (b), time extensions for preparation of the record in excess of the 90-day aggregate limit were granted by the trial court.

Rule 11 is entitled 'Record on Multiple Appeals' and subdivision (a) thereof provides in part that in the case of cross-appeals 'a single record * * * shall be prepared * * * in accordance with Rules 4 and 5 unless all appellants give notice of intention to proceed under Rule 7, or unless the parties stipulate to proceed under Rule 6.' Subdivision (b) added in 1951, governs subsequent appeals in the same case and allows the use of an abbreviated record in the second or subsequent appeal, incorporating by reference the necessary material in the record on the earlier appeal. Unlike subdivision (a), however, there is no positive provision as to the method of preparation of the record on the second or subsequent trial.

Respondent argues that there are but three recognized types of record on appeal (Russi v. Bank of America, 69 Cal.App.2d 100, 101, 158 P.2d 252); (1) the transcript; (2) the settled statement; and (3) the agreed statement; that by bringing up a record, part transcript and part settled statement, appellant is actually urging that a fourth method of appeal was created by Rule 11(b). It is a cardinal rule of statutory construction that parts of a statute must be construed together and harmonized as far as possible to avoid repugnancy (People v. Moroney, 24 Cal.2d 638, 642, 643, 150 P.2d 888); therefore, in the absence of any positive and controlling provision in the subdivision to the contrary, we must agree with respondent that a 'fourth method of appeal' was not created by the adoption of Rule 11(b) and that records of second or subsequent trials must be brought up as provided in Rule 11(a).

Presented to us now is the quary whether this court should relieve appellant from her default and permit a hearing on the merits. As it involves Rule 11(b), the issue presented appears to be without precedent. Rule 53(b), supra, provides that the reviewing court may for good cause relieve a party from default occasioned 'by any failure to comply with these rules, except the failure to give timely notice of appeal.'

This court's attitude, in connection with relief from defaults generally, is set forth in Jarkich v. Badagliacco, 68 Cal.App.2d 426, 431, 156 P.2d 969, 971: 'In determining whether to relieve from default we are faced with two conflicting policies. There is, of course, a strong public policy in favor of hearing appeals on their merits and of not depriving a party of his right of appeal because of technical noncompliance where he is attempting to perfect his appeal in good faith. On the other hand, a respondent is likewise entitled to consideration. He is entitled to have the appellant proceed with expedition, and if the appellant fails to comply with the Rules, to have the appeal dismissed. But this right to a dismissal is not absolute, except for failure to file the notice of appeal. Under the Rules, the trial court may grant extensions not to exceed 90 days, the appellate court may grant additional extensions (Rule 45(c), and the appellate court may relieve from default (Rule 53(b). In determining whether an appeallant should be relieved from default, various factors must be considered such as the length of the default, the circumstances surrounding the default, the relative injury that will flow to either party by granting or denying the relief, the nature of the default and other factors. Each case must turn on its own facts, and precedents are of little value.'

It appears from the affidavits filed herein that both trials of the instant cause were of great length, appellant's counsel specifically averring that the second trial lasted one month. Appellant's affidavit further states that her poverty, coupled with a permanent and disabling injury assertedly caused by respondent's negligence, necessitated her assumed right to proceed under Rule 7 and that '(i)f appellant is considered to have been in default, it is by sheer inadvertence and mistake.'

From the affidavit of respondent's counsel, it appears that difficulty was encountered in preparing a settled statement because of the inability of the reporter to locate several key items of testimony in the voluminous transcript, and that for this reason, in addition to the allegedly dilatory tactics of appellant, the settled statement is neither fair nor complete as to the respondent. This does not appear to be of substantial...