A. CAMINETTI, JR., as Insurance Commissioner, etc., Appellant, v. EDWARD BROWN AND SONS (a Corporation) et al., Respondents, 23 Cal. 2d 511

TRAYNOR, J. A judgment in favor of respondent was entered on November 25, 1939. On January 29, 1940, the court entered its order amending the findings, conclusions, and judgment and denying appellant’s motion for a new trial. On February 16, 1940, appellant filed a notice of appeal and a request for a transcript and personally arranged with the stenographic reporter for his compensation. On February 17, 1940, respondent also filed notice of appeal and a request for a transcript.

On June 11, 1941, the appellant filed a notice of intention to move for a new trial, and respondent filed a notice of motion to terminate proceedings for preparation of the transcript. On July 19, 1941, the court entered its order denying appellant’s motion for new trial and granting respondent’s motion to terminate proceedings. The present appeal is from that order. There can be no criticism of the order insofar as it grants the motion to terminate proceedings. On appellant’s own showing at the hearing on the motion, the reporter’s health was such as to preclude the possibility of his completing the transcript.

His death thereafter made the preparation of a transcript impossible. (See Wynecoop v. Superior Court, 17 Cal.2d 657 [111 P.2d 332].) Appellant’s motion for new trial was made pursuant to

section 953e of the Code of Civil Procedure and was based upon the impossibility of obtaining a transcript because of the disability of the reporter. It is settled that the trial court has a wide discretion in passing on a motion for new trial under

section 953e and that its action thereon must not be disturbed unless it is clearly shown that the trial court abused this discretion. (Smith v. Orange Belt Supply Co., 58 Cal.App.2d 848 [137 P.2d 845]; Moore v. Specialty Oil Tool Co., 128 Cal.App. 662 [18 P.2d 82]; Conlin v. Coyne, 19 Cal.App.2d 78 [64 P.2d 1123]; Kroeker v. Jack, 51 Cal.App.2d 272 [124 P.2d 619]; see Comey v. Comey, 8 Cal.2d 453 [66 P.2d 148].) It is not sufficient, as appellant contends, to file a notice of appeal, request a transcript and arrange for compensating the reporter.

It is the duty of the appellant to take all necessary steps to insure the prompt filing of a transcript by the reporter. If he is not sufficiently diligent in this regard the trial court may not only deny a motion for new trial under

section 953e of the Code of Civil Procedure (Smith v. Orange Belt Supply Co., supra; Moore v. Specialty Oil Tool Co., supra; Conlin v. Coyne, supra; Kroeker v. Jack, supra; see Comey v. Comey, supra) but may terminate the proceedings for preparation of the transcript. (Wood v. Peterson Farms Co., 131 Cal.App. 312 [21 P.2d 468]; O’Banion v. California C. P. Growers, 109 Cal.App. 328 [292 P. 975]; Smith v. Jaccard, 20 Cal.App. 280 [128 P. 1023, 1026]; Davis v. Alioto, 122 Cal.App. 740 [10 P.2d 467]; Sheriffs v. Scott, 109 Cal.App. 438 [292 P. 1088]; Clemmens v. Clemmens, 13 Cal.App.2d 651 [57 P.2d 529]; Shutz v.

Western etc. Distributors, 24 Cal.App.2d 659 [76 P.2d 135]; Western Concrete Pipe Co. v. Grabovich, 118 Cal.App. 367 [5 P.2d 71]; Taft v. Security First Nat. Bank, 139 Cal.App. 228 [33 P.2d 683]; Harris v. Burt, 47 Cal.App. 480 [190 P. 1058].) There is ample evidence in the present ease to support the trial court’s holding that there was undue delay in the preparation of the transcript and that appellant did not exercise the diligence required to guard against the contingency that the reporter would be unable to complete the transcript.

There was no evidence of disability that would have prevented the reporter’s preparing the transcript between February 16, 1940, when the appellant filed notice of appeal and request for transcript, and September 15, 1940, when the reporter suffered a heart attack. Appellant seeks to justify the delay on the ground that the reporter was engaged in reporting the case of Pacific States Savings & Loan Assn. v. Evans and did not have an opportunity to prepare the transcript in the present ease.

There is no evidence that the reporter could not have prepared the transcript between the date appellant filed his request therefor and the date on which the reporter commenced reporting the Pacific States case. Furthermore, it appears that there were other competent court reporters available at the time, but it is not shown that appellant or his attorney requested the reporter to get another reporter to take his place in the Pacific States case.

Moreover, despite this engagement, the reporter had an opportunity to prepare the transcript, for there was a recess in the Pacific States case from April 11, 1940, until July 16, 1940, and there is no evidence to show why he did not prepare it during that period. In any event it is not a valid excuse that the reporter did not have the time, owing to the press of other business, to prepare the transcript. (O’Banion v. California C. P. Growers, 109 Cal.App. 328, 329 [292 P. 975]; see Laumann v. Conner, 12 Cal.App.2d 631 [55 P.2d 1225].) As pointed out in Harris v.

Burt, 47 Cal.App. 480, 482 [190 P. 1058], appellant could have procured the filing of the transcript by making a demand on the reporter to complete it and by securing an order of court or petitioning for writ of mandate to compel him to do so. Appellant did not at any time call the attention of the court to the delay, nor did he take any action to persuade or compel the reporter to prepare the transcript. Instead, he let the matter drift until the reporter became unable to do so.

Finally, after the reporter became permanently disabled there was an unexplained delay of over eight months before appellant served and filed his notice of intention to move for a new trial under the provisions of

section 953e of the Code of Civil Procedure. Appellant’s claim of diligence rests principally upon the fact that his attorney communicated with the reporter’s transcriber. What authority the latter had does not appear, but in any event, the appellant, after learning from these communications of the reporter’s inactivity, did nothing to expedite its preparation.

Appellant relies upon the advice given his attorney by the reporter’s transcriber that orders extending the time to prepare the transcript had been obtained and all necessary orders further extending time would be obtained by the reporter and the transcriber. From March 7, 1940, when the transcript was due, until June 25, 1941, the reporter’s transcriber procured orders from various superior court judges extending the time for the reporter to prepare and file the transcript. Each of these orders was obtained in violation of

section 953a of the Code of Civil Procedure, providing that "The stenographic reporter shall not postpone the filing of the transcript except upon order of the court, upon affidavits filed with the court by the reporter, stating facts and not conclusions, which affidavits before any continuance is granted shall be served upon the attorneys appearing in said cause. . . .” No affidavits were ever made, served, or filed, and no notice was ever served on or mailed to respondents or their attorneys.

There were, moreover, several periods of time, varying from two or three days to one hundred and twenty-seven days, during which there was no protecting order. Appellant was put on notice that such orders were obtained in violation of

section 953a, for his attorney was told that orders were being obtained, but never received any affidavits that are a condition to such orders. Under these circumstances appellant cannot rely on the derelictions of court officers. (See 4 C.J.S. 1374.) Appellant contends that he had the right to rely upon void orders extending the reporter’s time, citing California Nat. Bank v. El Dorado Lime etc. Co., 200 Cal. 452 [253 P. 704] and Lewith v. Rehmke, 217 Cal. 563 [20 P.2d 687], which involved bills of exceptions and relief under

section 473 of the Code of Civil Procedure. In the present case there was not only no attempt to obtain relief under

section 473 but the time limited by that

section expired long before appellant made any application to the court. Moreover, appellant did not rely on any order, for neither party saw the orders until about the date of appellant’s motion, and for a considerable part of the time there were no orders, valid or invalid, in effect. Even if the showing made were sufficient to justify an order denying a motion to terminate proceedings, had the reporter been able to complete the transcript, it is not sufficient to show an abuse of discretion by the court in denying a motion for new trial.

Every presumption favors the fairness and regularity of the proceedings of the trial court leading to the judgment and to the denial of the motion for new trial. There is certainly no abuse of discretion by a trial court in refusing to deprive the respondent of his judgment when the appellant by taking the necessary steps for the prompt filing of the transcript could have avoided the contingency that makes its preparation impossible. Appellant’s contention that the trial court in the basic action erred in construing and applying to the facts of the case the provisions of

section 2344 of the Civil Code was not made on the hearing of his motion in the trial court. The affidavit in support of the motion declared that “The legal questions to be determined on appeal depend wholly upon the facts established at the trial, and it is therefore necessary that the reporter’s transcript of the trial be had.” There was no showing made as to the nature of the testimony, and no indication that there was any merit in an appeal. In the absence of a record showing that

section 2344 of the Civil Code was involved on the trial any discussion of that

section is inappropriate. (See Town of St. Helena v. Merriam, 171 Cal. 135, 137 [152 P. 299].) Appellant contends that since respondents filed a cross-appeal they were as responsible as appellant for the delays in the preparation of the transcript. Appellant, however, was the moving party in the trial court on the present appeal. His failure to take the proper steps to perfect his appeal in the basic action is in no way excused by the failure of respondents to take proper steps to protect their appeal when they are not seeking relief. Each party must act with diligence to perfect his own appeal. (Dorcy v.

Brodis, 153 Cal. 673, 675 [96 P. 278].) The order appealed from is affirmed. Gibson, C. J., Curtis, J., and Edmonds, J., concurred.