Kaufman v. Brown
| Decision Date | 28 September 1951 |
| Citation | 235 P.2d 632,106 Cal.App.2d 686 |
| Court | California Court of Appeals Court of Appeals |
| Parties | KAUFMAN v. BROWN et al. Civ. 4263. |
T. T. Crittenden, San Diego, for appellant.
Vincent Whelan, Thomas Whelan, San Diego, for respondents.
Plaintiff and appellant brought this action against defendants and respondents for claimed wrongful arrest and imprisonment. On a former appeal from a judgment of dismissal after sustaining demurrers to the complaint without leave to amend, the judgment was reversed. Kaufman v. Brown, 93 Cal.App.2d 508, 209 P.2d 156. The action went to trial, before a jury, upon a second amended complaint, the allegations of which are recited in the former opinion. A judgment of nonsuit resulted as to defendants George, Ulrick, Besnak and Stearns, and was denied as to the remaining defendants. After trial a verdict and judgment in their favor resulted. On December 29, 1950, plaintiff filed a notice of appeal from the judgment thus entered. On January 8, 1951, counsel for plaintiff gave notice to the clerk of such appeal and requested him to prepare record on appeal to include judgment roll, minutes, and reporter's transcript. On January 18, 1951, plaintiff filed an amended notice requesting the clerk to prepare the record on appeal and to include the judgment roll, minutes and 'limited reporter's transcript' of the testimony of John W. Brown, taken under sec. 2055, C.C.P., the testimony of Cyrus Stearns, and the court's instructions to the jury. After the clerk gave notice of the completion of the limited reporter's and clerk's transcripts, defendants, on February 26, 1951, filed objections thereto upon the ground that the reporter's transcript was not a full and correct transcript of the oral proceedings provided for in Rule 4 of Part II, Rules on Appeal, and that plaintiff had not complied with Rule 4, subdivision (b), and requested that plaintiff be required to present a complete transcript. On April 6, 1951, plaintiff filed a motion that he be permitted to amend his notice of appeal and to limit the grounds of appeal permitting him to use the incomplete reporter's transcript previously requested and prepared. The motion and objections thereto were heard on April 6, 1951, and denied. Plaintiff, on April 19, 1951, secured an order from another judge allowing him to proceed in forma pauperis. The trial judge found by order duly signed on April 30, 1951, that a complete transcript of the testimony should be prepared; that it should be accomplished forthwith and submitted for certification to the judge within two weeks of that date. Plaintiff did not secure the completion of such a reporter's transcript. It is from this last-mentioned order that plaintiff, on May 9, 1951, filed his notice of appeal, and states as his grounds that he should be permitted (1) to amend the notice and limit his appeal to three points set forth, using a partial transcript; (2) to file by the alternate method a bill of exceptions and effect his appeal in that way; and (3) that this court should reverse Rucker v. Superior Court, 104 Cal.App. 683, 286 P. 732, and direct the preparation of a full transcript without cost.
The original notice to the clerk contained no statement of the points to be raised and there was no designation therein of the portions of the oral proceedings to be transcribed. There was no stipulation of the parties that any portion of the oral proceedings be not transcribed. The so-called amended notice to the clerk to prepare record on appeal, which sought a limited reporter's transcript involving only the testimony of two witnesses and the court's instructions to the jury, was not filed within ten days after filing notice of appeal, as provided by rule 4, Rules on Appeal. The trial court was within its rights in refusing to certify the limited reporter's transcript as prepared and in ordering a complete transcript of the testimony within a prescribed period. Rule 4(a), Rules on Appeal; ...
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