Somers Co. v. Smith

The defendant appeals from an order denying his motion, made under the provisions of section 473 of the Code of Civil Procedure, to vacate a prior order denying a motion to have certified a transcript for use on appeal from a judgment dated May 15, 1917.

The appellant, as trustee for the creditors of the lessee of property of the plaintiff corporation, was sued for rent of the premises during his occupancy after the original lessee had made to him a general assignment for the benefit of creditors. The judgment was for $970.85 and costs. Motion for new trial being denied, on August 21, 1917, the statutory notice was given the clerk of the court, and a copy thereof to the official reporter, for the preparation of transcript of the clerk’s record and the trial proceedings. Notice of appeal was filed under the alternative method on September 15, 1917. No transcript was filed until April 4, 1918, when notice was given that it would be presented for settlement on April 8, 1918. Objections on several grounds to_ the settlement and certification of the transcript were presented to the judge before whom the matter was pending. The record fails to show formally when the matter was…