241 P. 920 | Cal. Ct. App. | 1925
According to the petition filed herein the appellant, petitioner herein, was by a judgment of the superior court of the county of Los Angeles disbarred from the practice of law in the state of California, and has appealed from said judgment of disbarment; that during the trial of said proceeding in said superior court a large number of written instruments and documents were admitted in evidence as exhibits in said proceeding, and that it will cost approximately the sum of $350 to have said exhibits transcribed and made a part of the record on appeal *27 herein. Petitioner therefore asks for an order of this court that he be relieved from having said exhibits transcribed, and that this court direct the clerk of said superior court to produce and file said original exhibits in this court, to be used at the hearing of said appeal. The attorneys of the bar association, instituting said proceedings of disbarment against appellant, have appeared and objected to the granting of said order.
[1] The appeal was taken under section 953a of the Code of Civil Procedure, and petitioner has filed with the clerk of said trial court his notice of appeal and notice demanding clerk's transcript and stenographic report of the trial as required by said section. By said section it is provided that "the stenographic reporter shall . . . prepare a transcript of the phonographic report of the trial, including therein copies of all writings offered or received in evidence." It will thus be seen that by the terms of this section it is made the duty of the reporter to include in the transcript prepared by him copies of all writings offered or received in evidence. [2] We know of no provisions of law giving to this court any authority or power to vary the express provisions of this section of the code, or to control in any manner the action of the reporter in preparing said transcript by directing him to exclude therefrom any portion of the proceedings of said trial. This section of the code has determined the duty of the reporter in this respect. The examination and certification of the reporter's transcript is a function of the trial judge. (Martin v. Pacific etc. Co.,
[3] Neither do we think petitioner can obtain the relief sought by virtue of rule XXV of the supreme court, which provides that, "When the inspection of an original paper, which was offered in evidence in the court below, is shown to be necessary to a correct decision of the appeal, the court may order the clerk of the court below to transmit such original paper, if in his possession, to the clerk of the court; . . ." While under the authority given the court by this rule, it may order the clerk of the trial court to transmit original exhibits admitted at the trial when it is made to appear that an inspection of the same is necessary, yet we do not understand from this rule that said *28 exhibits can be omitted from the transcript required by section 953a to be prepared by the reporter. The plain provisions of this section require that copies of all writings offered and received in evidence shall be included in the reporter's transcript. Thereafter, if the appellate court deems it necessary that the originals, or any of them, shall be inspected by the court, under rule XXV it is given the authority to order the clerk of the trial court to transmit the same to the appellate court. [4] Petitioner has alleged "that it will be necessary for the above-entitled court to inspect and examine said exhibits in order to properly rule and pass upon all legal questions involved on appeal." But no facts are stated in the petition showing that an inspection of said exhibits, or any of them, is or will be necessary. But even if such a showing were made, it would still be the duty of the reporter to include said copies of said exhibits in the transcript to be prepared by him. We do not understand, however, that appellant seriously presses this point. His main contention is that on account of the great cost of transcribing these exhibits, the court should direct that they be omitted from the transcript, and that the originals thereof be transmitted to this court. As we have already stated, this court has no authority to make such an order. If petitioner desired a shorter record than that of the so-called "alternative method," he should have presented his appeal on a record containing a bill of exceptions.
[5] It was suggested at the hearing that the court might have power to make said order under stipulation signed by all the parties to said action. At the time of the hearing, however, the attorneys declined to enter into such a stipulation, and we understand that they are still of the same mind. Without such a stipulation any order made by this court would, in our opinion, be illegal and void.
The petition is denied.
Conrey, P.J., and Hahn, J., pro tem., concurred. *29
