135 P. 1128 | Cal. | 1913
This is an application for a writ of mandate to compel the defendant, as judge of the superior court, to certify a transcript to be used on an appeal to this court from an order of the superior court confirming a sale of real estate in the Matter of the Estate of Francis W. Bradley, deceased, being the appeal No. L.A. 3562. *281
The plaintiffs are the appellants in said appeal. In preparing their transcript on appeal they proceeded under section 953a of the Code of Civil Procedure. In their notice to the clerk, under that section, they requested a transcript of the testimony and proceedings taken and had at the hearing, and also that there be included in said transcript copies of the petition for sale, the order of sale, the return of sale, the notice of hearing of the return, the bid received, and the order of confirmation appealed from. The transcript of the testimony and proceedings at the trial was written out by the stenographic reporter, bound together and labeled "Reporter's Transcript" and certified by him. The copies of the documents and orders above mentioned, together with the notice of appeal, were made, bound together and labeled "Clerk's Transcript" by some one whose identity is not disclosed, and were certified by the county clerk to be correct. Upon due notice, these two documents were presented to the defendant for his approval and authentication as the transcript on appeal. He examined them and thereupon certified to the truth and correctness of the matters contained in the document labeled "Reporter's Transcript," but refused to certify or otherwise authenticate the document labeled "Clerk's Transcript," or to sign a certificate including both of them as the transcript on appeal. It is admitted that the documents embraced in the so-called "Clerk's Transcript" are correct.
We think the two documents constituted the transcript contemplated by section 953a, in cases such as this, where the order appealed from is not required to be included in what is technically designated as a judgment-roll. The first paragraph of the section authorizes the appellant, by notice to the clerk, to require that a transcript of the testimony and proceedings at the trial be made up and prepared. The second paragraph makes it the duty of the stenographic reporter to prepare a transcript of his phonographic report of the trial "including therein copies of all writings offered or received in evidence, and all other mattersand things required by the notice above referred to to be thereincontained." It is this transcript which the judge is required to certify. The third paragraph of the section relates to the first paragraph and *282 must be read in connection therewith as if it were a part thereof. It is as follows:
"If the judgment, order or decree appealed from be not included in a judgment-roll, the party desiring to appeal shall on the filing of said notice specify therein such of the pleadings, papers, records and files in said cause as he desires to have incorporated in said transcript in addition to the matters hereinbefore required and the same shall be included."
It is apparent from these provisions that in cases as to which there is no provision of the code requiring the making of a judgment-roll, the appellant may include in his notice to the clerk a request that the documents relating to the order appealed from and corresponding to the judgment-roll, be included in the transcript to be made up and prepared by the reporter, and that if he does so, the reporter must include them in his transcript to be presented to the judge for approval. In such a case, it is the duty of the judge, if he finds them correct, to approve and certify all the documents properly designated in the notice to the clerk, as well as the stenographic reporter's transcript of his notes taken at the trial or hearing. Of course papers might be designated which would be foreign to the case on appeal and which he might reject, but such is not the case here. The papers here designated were all proper parts of the record on the appeal in question, appropriate as such at least, if not essential. The so-called "Clerk's Transcript" should have been bound in with or securely attached to the "Reporter's Transcript," as a part thereof, and the judge should have approved and certified to the whole of it, upon finding it to be correct. (Totten v. Barlow,
It is of no moment whether the typewriting was done by the clerk, or by the reporter. If the papers were correctly set forth in the certified transcript presented to the judge, as is conceded, he should have certified thereto, regardless of the identity of the person who copied them.
Let the writ of mandate issue to the defendant and let there be served on him therewith the said transcript on appeal now on file above mentioned, to which he will attach his certificate *284 as here indicated and thereupon return the same to the clerk of this court.
Sloss, J., Angellotti, J., Lorigan, J., Henshaw, J., and Melvin, J., concurred.