201 P. 723 | Idaho | 1921
This is an original application for a writ of mandamus, directed to the defendant, as judge of the district court of the fourth judicial district of Idaho, directing him to settle the reporter’s transcript in the case of Kate Cecelia Bedal v. Nellie Payne Johnson and the Florence Livestock Company.
The transcript was lodged with the clerk of the trial court on August 29, 1920. It was duly served on counsel for respondent, and on Sept. 30, 1920, plaintiff requested the clerk to deliver the transcript, together with the alleged errors noted by respondent in that case, to defendant for
In this ease we have no question presented as to negligence or default prior to the delivery of the transcript to the trial judge, nor any claim that the transcript is in such condition that the judge cannot properly settle it so that it will conform to the truth. When such questions arise, it may well be that the action of the trial court in settling or declining to settle the transcript is discretionary, and will not be controlled by mandamus.
Considerable space is occupied in the record in showing what transpired between counsel for appellant and respondent in the .case of Bedal v. Johnson after delivery of the transcript to defendant, in an effort on the one hand to show that appellant in that case used due diligence, and on the other that she was guilty of negligence. In our opinion such showing is unnecessary.
When a reporter’s transcript is seasonably delivered to the trial judge for settlement, it is the duty of the judge promptly to settle it.
In C. S., sec. 6886, it is provided, among other things, as follows:
“At the expiration of the time limited for designating errors, the transcript, with any notice designating errors shall be transmitted to the judge who tried the cause, by the clerk, on application of either party, and such judge shall forthwith settle the same, notifying the parties by such notice as he deems adequate of the time and place of settle*377 ment in the event of any error designated by notice and not agreed to, ... . ”
Under this statute, after a transcript is duly delivered to the trial judge for settlement, he becomes the actor. The law imposes upon him the duty of giving such notice as may be required and of settling the transcript when it is in such condition that he can properly settle it. In our opinion the duty is unqualified, and mandamus is the proper remedy to be invoked in ease of refusal.
Let the writ issue. No costs awarded.
