Jaccard

The petitionfor a rehearing of this cause in the supreme court is denied.

The district court of appeal, in its opinion, says that section 953a of the Code of Civil Procedure ‘ ‘ provides that the appellant shall file his notice of appeal with the clerk. ’ ’ This section has been misapprehended by some practitioners, and lest there be further misapprehension by reason of this language we take this occasion to correct it.

Section 953a does not provide at all for a notice of appeal. The purpose of that section, in connection with sections 953b and 953c, is to provide a method of preparing the record or transcript to be filed in the proper appellate court in support *288 of the appeal. None of the proceedings there prescribed are jurisdictional to the appeal.

The appeal may be taken either in the manner provided by sections 940 and 941 of the Code of Civil Procedure, or in that provided by sections 941a, 941b, and 941c of the Code of Civil Procedure. When properly taken by either method, the appellate court to which it is taken has jurisdiction of the appeal, even if no transcript on appeal is ever filed to support it. It may dismiss such appeal for delay in filing the transcript.…

This is an appeal from a judgment in favor of plaintiff, taken by defendant according to the method prescribed by section 953a of the Code of Civil Procedure.

It is claimed by respondent that this court cannot consider upon this appeal anything contained in the reporter’s transcript, because such transcript was not filed with the clerk within twenty days from the time notice requiring said transcript was filed with the clerk, as provided in section 953a of the Code of Civil Procedure.

Appellant filed his motion requiring the transcript on August 17, 1911, and gave the bond for the cost thereof as required by the clerk. Forty-eight days thereafter, on October 4, 1911, respondent gave notice of a motion to terminate *283 the proceedings to obtain such transcript, on the ground that no such transcript had been filed, nor any extension of time obtained for filing the same.

Upon a hearing—the transcript having been filed in the mean time—the court denied this motion; and thereafter, over the objection of the respondent upon the same grounds, certified to the correctness of such transcript, and included therein the proceedings on such motion and objection.

Section 953a of the Code…

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 282 This is an appeal from a judgment in favor of plaintiff, taken by defendant according to the method prescribed by section 953a of the Code of Civil Procedure. It is claimed by respondent that this court cannot consider upon this appeal anything contained in the reporter's transcript, because such transcript was not filed with the clerk within twenty days from the time notice requiring said transcript was filed with the clerk, as provided in section 953a of the Code of Civil Procedure. Appellant filed his motion requiring the transcript on August 17, 1911, and gave the bond for the cost thereof as required by the clerk. Forty-eight days thereafter, on October 4, 1911, respondent gave notice of a motion to terminate *Page 283 the proceedings to obtain such transcript, on the ground that no such transcript had been filed, nor any extension of time obtained for filing the same. Upon a hearing — the transcript having been filed in the mean time — the court denied this motion; and thereafter, over the objection of the respondent upon…