Ward v. Healy

Citations

• 110 Cal. 587
• 42 P. 1071
• 1895 Cal. LEXIS 1102

Syllabus

<p>Appeal—Printing and Filing op Transcript—Deposit with Clerk— Construction op Rule XII.—Rule XII of the supreme court, which provides that the written transcript in civil cases may be filed with the clerk of the court if, when presented for filing, it be accompanied with sufficient funds to pay the expenses of printing, and that the clerk, upon receipt thereof, shall cause the transcript to be printed, etc., should be strictly enforced and obeyed as written, and a deposit of the transcript with the clerk, without the funds necessary to pay for the printing, is not in compliance with the rule.</p> <p>Id.—Motion to Dismiss Appeal — Filing op Transcript apter Notice op Motion—Transit op Transcript.—Where a motion to dismiss an appeal and the printed transcript were filed upon the same day, the appellant’s rights are not saved thereby, if the transcript was not filed before the notice to dismiss was served; nor is the fact that the printed transcript was in the office of the express company in transit to the clerk for filing when the motion to dismiss was served, the equivalent of fil. ing the transcript within rule V of this court.</p> <p>Id.—Excuse por Failure to File Transcript—Agreement with Clerk. While no understanding or agreement between the clerk of the court and the appellant’s attorney can dispense with a compliance with rule XII of the court, or give appellant any right in law to rely upon any such understanding, yet, where that rule has not been heretofore construed, and appellant’s attorney, relying upon an agreement with the clerk, whereby the clerk, though without authority, in effect waived the payment of funds provided for by the rule, and consented to the printing of the transcript for him by appellant’s attorney, which was printed without unnecessary delay, held, that the failure to file the printed transcript is so far excused by the circumstances that the appeal should not be dismissed for noncompliance with rule XII.</p>