229 P. 27 | Cal. | 1924
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *447 The plaintiff brought an action in the ordinary form to quiet title to certain real property. The defendant answered, claiming title in himself. A decree was entered in favor of the plaintiff. Thereupon the defendant made a motion for a new trial, which was denied by operation of law, the motion not having been determined within two months after service of notice of the entry of judgment. (Code Civ. Proc., sec. 660.) An appeal to this court was then taken by the defendant, and the matter now comes before us on motion of the plaintiff and respondent to affirm the judgment of the trial court on the ground that there is an insufficient record on appeal. The motion is made on the record on appeal on file and the notice of motion.
The appeal is taken on the alternative method. The record consists of a proper clerk's transcript, and what purports to be a "reporter's transcript on appeal." From this "reporter's transcript" it appears that when the case was called for trial the official reporter of the court was present. The attorneys for both plaintiff and defendant announced that they did not wish the case reported. After some further proceedings, which were not reported, the attorney for the plaintiff offered a document in evidence and counsel for the defendant objected. Thereupon the reporter took in shorthand the further proceedings, including the objection to the document offered. His certificate is that the transcript contains a full, true, and correct statement of the testimony and proceedings "from said point aforesaid."
In moving for an affirmation of the judgment the respondent assumes the position that the record here cannot be considered by the court for the reason that it is not presented as a bill of exceptions, and is not prepared and *448
authenticated in the manner required by sections 953a, 953b, and 953c of the Code of Civil Procedure. His first contention is that a full and complete record has not been transmitted to the court. Section 953a provides that the stenographic reporter, on receiving the proper direction from the court, shall transcribe fully and completely the phonographic report of the trial, which is thereupon filed with the clerk. It is then the duty of the clerk, on due notice to the attorneys appearing in the cause, to present the transcript to the judge for approval. At the time specified in the notice of the clerk, the judge shall examine the transcript, and if he finds it a full, true, and fair transcript of the matter required by the statute to be included, he shall certify to its truth and correctness. [1] Upon such certification being made, the transcript becomes a part of the record on appeal. In no other way can it become such. (Totten v. Barlow,
The clerk's minutes show that only documentary evidence was received in the trial below. The respondent failed to appear at the time noticed for certifying the transcript and offer any objection to its certification. He has not pointed out a single particular in which it fails to contain the matters required by the sections of the code. (Code Civ. Proc., secs.
It is next contended that the reporter's transcript here should not be considered for the reason that the reporter was not requested by anyone to take down testimony, and was, therefore, not acting as an official reporter as defined by section
It is next urged that the reporter's transcript cannot be considered for the reason that it is not certified by the *450
judge who tried the case. The action was heard before Judge Vicini, and the transcript is certified and approved by Judge York. No reason is stated or shown for this action, and the respondent contends there is no authority therefor. Section 953a, supra, does not require that the reporter's transcript, after being filed with the clerk, shall be presented to the trial judge or judge who tried the case, or that the "trial judge" or the "judge who tried the case" shall certify to the truth and correctness of the transcript. But we may assume, for reasons at once apparent without stating them, that such was the intention of the legislature. Rule XXVII of this court provides that when the judge before whom an action was tried is dead, or has been removed from office, or resigns, any uncertified record, under section 953a et seq. of the Code of Civil Procedure, may be settled and certified by his successor in office, or if he be disqualified, by a judge of the same or an adjoining county. When the judge before whom an action was tried becomes disqualified or is absent from the state, the rule further provides that such record may be settled and certified in like manner. There is no claim here, argues the respondent, that Judge Vicini, who tried the case, is dead, has been removed from office, has resigned, has become disqualified, or was or is absent from the state. The case is, therefore, he contends, not one that comes within the exceptions provided by the court rule. From this premise he argues that the certificate of any other judge is a nullity, and the record so certified must be wholly disregarded. [7] In answer, it may be said that it does not appear here, by affidavit or otherwise, but that some of the circumstances which would prevent Judge Vicini from certifying to the record may in fact exist. Under section 1963, subdivision 16, of the Code of Civil Procedure, there is a disputable presumption "that a court or judge, acting as such, . . . was acting in the lawful exercise of his jurisdiction." In a case so like the one here as to be analogous, it was held that the presumption of law just noted was sufficient to support the certificate of a judge, who did not try the case, in settling a statement on appeal, since there was a possibility that, for a sufficient reason not made to appear, the judge who did try the case did not act. (Lincoln v. Sibeck,
Respondent's last objection to the consideration of the record on appeal is embodied in his contention that the notice to the clerk to prepare a transcript was filed too late. The notice to the clerk to prepare the transcript must be filed within ten days after notice of entry of judgment, order, or decree, or, if a proceeding on motion for a new trial be pending, within ten days after notice of decision denying said motion, or of other termination thereof. (Sec. 953a,supra.) In this case, notice of entry of judgment was served and filed on the sixth day of October, 1923. The defendant thereupon gave notice of intention to move for a new trial, and, no ruling having been made thereon within two months after service of the notice of entry of judgment, the effect was a denial, on December 6th, of the motion without further order of the court. (Code Civ. Proc., sec. 660.) On November 9th the defendant filed notice to the clerk to prepare a transcript. On January 2, 1924, twenty-seven days after the denial by operation of law of the motion for a new trial, appellant filed another notice requesting a transcript. [8] The notice filed on November 9th was a sufficient compliance with the statute, and the notice filed on January 2, 1924, may be disregarded. [9] This court has held that the proper interpretation of section 953a permits the filing of the notice to prepare transcript at any time after notice of the entry of judgment and before the expiration of ten days "after notice of decision" on motion for a new trial. The notice filed on November 9th was given during that period, and was sufficient. (Hadacheck v. Superior Court,
The motion to affirm the judgment is denied.
Richards, J., Lawlor, J., Lennon, J., Seawell, J., Shenk, J., and Myers, C. J., concurred. *452
