243 P. 417 | Cal. | 1926
Application for a writ of mandate to compel the respondent to authenticate a transcript on appeal. *87 Upon the filing of the petition an order was issued requiring the respondent to show cause, if any he had, why an alternative writ of mandate should not issue. No alternative writ has been issued. The matter is submitted on a general demurrer to the petition.
It appears that in an action in ejectment in the superior court in and for the county of Alameda, wherein the Central Savings Bank of Oakland was plaintiff and the petitioners herein were defendants, a judgment was rendered and entered against said defendants and their appeal therefrom is pending in this court. In due time the defendants filed with the clerk of the superior court a notice to prepare the record on appeal. The notice requested the preparation of a transcript "of the testimony offered or taken, evidence offered or received, and all rulings, instructions, acts or statements of the court, also objections and exceptions of counsel and all matters to which the same relate," as provided for in section 953a of the Code of Civil Procedure. In attempted compliance with the requirements of subdivision 2 of section VII of the rules of this court the record was prepared in two parts. One was designated the reporter's transcript, in which was incorporated only the phonographic report of the trial. The respondent judge, on the seventeenth day of September, 1924, certified to the truth and correctness of that transcript. Prior to the trial certain proceedings were had and taken and certain non-appealable orders of the court were made, the records of which proceedings and motions, consisting of some twenty-one items, were specially designated by said defendants in their notice to the clerk for inclusion in the record to be prepared. These twenty-one items were not included in the reporter's transcript, but were set forth in the second part of said record, called the clerk's transcript, in which was also embodied the judgment-roll and notices of appeal. This so-called clerk's transcript was also certified by the respondent judge as being true and correct. Both of said transcripts were filed in this court on October 28, 1924, as the record on appeal. Thereafter, on the thirtieth day of March, 1925, counsel for the respondent bank filed in the superior court a notice of suggestion of diminution of record and of a motion to strike from the said clerk's transcript the twenty-one items referred to and to cancel the certificate *88 of the respondent judge appended to said clerk's transcript on the grounds, among others, "that if any occasion existed for the inclusion of such matters or things in the record on appeal, such matters and things should have been included in the reporter's transcript on appeal; that although said clerk's transcript on appeal was presented to the court for authentication and certification, the clerk gave no notice to counsel for plaintiff of the fact of such presentation"; that they had no notice that the same were included in the clerk's transcript until March 3, 1925, and that the court erred in executing its certificate in that the said clerk's transcript was duly certified by the clerk and that there was and is no authority in law for the certification of the clerk's transcript by the trial judge. Thereafter, on May 2, 1925, the respondent judge granted said motion in part, in this, that he made an order canceling his said certificate, setting forth in said order as the reason for such cancellation "that there is no provision of law requiring or authorizing the trial judge to certify the clerk's transcript on appeal, and that the certificate to said clerk's transcript on appeal was executed by the undersigned judge of the superior court [respondent here] through inadvertence . . ." Thereafter, on the same day, to wit, May 2, 1925, the defendants in the said action, petitioners herein, filed their notice of appeal from the order last above mentioned, referring to the same as an "order after final judgment," and concurrently therewith filed a notice with said clerk requesting that a transcript of the proceedings on said motion for diminution be prepared pursuant to said section 953a The respondent judge refuses to certify said transcript, first, on the ground that said order is not an appealable order, and, secondly, on the ground that no record can be made up, allowed, or certified in any case or upon any appeal under said section 953a unless a reporter was present at the hearing of the motion or other matter passed upon.
Considering the grounds of refusal in their reverse order it must be taken as settled that where there is no office for the reporter to perform at the hearing of a motion or other proceeding, and consequently there is no reporter present, nevertheless the appellant may proceed under the alternative method and it is the duty of the trial judge to *89
authenticate all papers, records, and files which are not subject to certification solely by the clerk, and which are essential to a proper determination of the appeal. (Pierce v. Works,
The effect of the amendment was to authorize the preparation of a record under that section even when the appeal is on the judgment-roll alone (see opinion of supreme court appended to McKinnell v. Hansen,
As to the first ground of refusal we think the contention of the respondent that the order striking his certificate from the said clerk's transcript was not an appealable order must be sustained. In order that a special order made after final judgment, as contemplated by subdivision 2 of section 963 of the Code of Civil Procedure, be appealable, such order must affect the judgment in some manner or bear some relation to it either by way of enforcing it or staying its execution (Griess v. StateInvestment etc. Co.,
But it would not follow that because the order striking the certificate is not appealable the petitioners would be without remedy. It was the plain duty of the respondent under the statute on an appeal from the judgment to properly authenticate that portion of the record which could not be certified by the clerk and, as above stated, the clerk is competent to certify only the judgment-roll and the notice of appeal. Mandamus is the proper remedy to compel the trial judge to perform that duty (Schmitt v. White,
Richards, J., Waste, C.J., Seawell, J., and Lawlor, J., concurred.