165 P. 429 | Cal. | 1917
This is a proceeding in mandate to compel the certification by a trial judge of the stenographic reporter's transcript, as provided in section 953a of the Code of Civil Procedure, for use in support of an appeal prosecuted by petitioner from a judgment rendered against her in a case entitled Tropical Investment Co. v. Edna A. Brown.
The principal ground for the refusal of the trial judge to certify the transcript was that the notice for the preparation of the same was not filed with the clerk of the superior court within the time prescribed by law. The law requires such notice to be filed "within ten days after notice of entry of the judgment, order or decree, or if a proceeding on motion for new trial be pending, within ten days after notice of decision denying said motion, or of other termination thereof." (Code Civ. Proc., sec. 953a) It is settled that the filing of this notice within the time prescribed is essential to one's right to have such a transcript prepared and settled. (Estate ofKeating,
It was held by the court in Bank in Estate of Keating,
In the case at bar, the only material record evidence is furnished by the minutes of the court, which show the following entry, viz.:
"Tropical Investment Co., } Plaintiff, } vs. } "Edna A. Brown, } Defendant. }
"The defendant's motion for a new trial coming on regularly to be heard, M.K. Young, Esq., appearing as attorney for Plaintiff and A.C. Vaughn, Esq., for defendant. It is ordered that the motion be and the same is hereby denied."
There is nothing in the entry or on the records or files to indicate that petitioner or her attorney did any act showing actual notice of this decision until, in pursuance of the written notice subsequently served, the notice for preparation of the transcript was filed. We do not think that it may fairly be held that the minute entry clearly shows actual notice of the decision to her attorney. It is entirely consistent therewith that he did not have such notice. While it shows that he appeared on the hearing of the motion, it does not show whether or not he was actually present when the decision was rendered: So far as the record shows, he may or may not have been present at that time. The records failing to show clearly that he did have such actual notice, we are of the opinion that it must be held that time for filing notice for preparation of transcript did not commence to run until the notice of decision was served, viz., on July 29, 1916, and that the notice filed on August 8, 1916, was in time. *144
As to another objection made, we are entirely satisfied with what was said by the district court of appeal of the second appellate district, in the decision in this proceeding, as follows:
"It appears that on August 2d the court, upon petitioner's application, made an order extending the time within which to prepare a bill of exceptions to be used on appeal; and this fact is urged as a further ground for the refusal of the court to certify the reporter's transcript prepared in lieu thereof. The fact that on August 2d petitioner contemplated an appeal upon a bill of exceptions, as prescribed in section 650 of the Code of Civil Procedure, and took steps to obtain an extension of time for the preparation thereof, could not deprive her of the right given by section 953a in bringing up the record in the manner there prescribed."
There is no other point requiring notice.
Let the peremptory writ of mandate issue as prayed.
Victor E. Shaw, J., pro tem., Sloss, J., Shaw, J., Melvin, J., and Henshaw, J., concurred.