A writ of review having been issued, this matter is now before us for decision as to whether or not the respondent court exceeded its jurisdiction in making the two orders by which petitioner is aggrieved.
Petitioner is an official court reporter of respondent сourt. Prior to the 19th day of April, 1938, department 12 of said court had for 59 days conducted a trial of the action of Will *18 iams v. Davis. Petitioner reported 52 days of said proceedings. From the judgment entered in favor of the defendant Davis, plaintiff took an appеal by the alternative method. (Code Civ. Proc., sec. 953a.) On said 19th day of April, said plaintiff filed her written request for the preparation of a transcript in which she stated that personal arrangements had been made with the court reporters relativе to their compensation (Code Civ. Proc., sec. 953b). Contemporaneously, said plaintiff and petitioner, by writing, agreed that petitioner would furnish his portion of the transcript and that plaintiff would pay petitioner a small portion of the statutory feеs as the work of issuing the transcript progressed, and in the event of her ultimate success by judgment or favorable compromise, she would pay petitioner the full statutory fees for his work. A duly executed waiver of the undertaking required by said code sectiоn was filed by petitioner.
It does not appear that plaintiff ever failed to perform her obligations under the agreement as subsequently modified. But, notwithstanding her promptness, after more than seven months had passed from the date of the agreement, petitioner had transcribed but a small portion of his notes of said trial. She sought to expedite her appeal by invoking the aid of the court. On January 4, 1939, in response to an order to show cause why he should not be compelled to proceed with said transcription, the judge of department 34 of said respondent court before whom the order was returnable, made and entered its order that petitioner ‘ proceed immediately with the preparation of the balance оf the record reported by him . . . and that the same be prepared in accordance with the written agreement heretofore made between the said reporter and appellant Edna J. Williams upon payment by her of the said reporter’s compensation, as provided in said agreement and the said amendments thereto”.
Petitioner having failed to comply with said order, the same judge cited petitioner to show cause why he should not be adjudged guilty of contempt. But, before the hearing of said citation, to wit, on the 28th day of February, 1939, the judge in said department 12 of said court, upon the application of petitioner, entered an order for the purpose of vacating said order of department 34. Forthwith said plaintiff applied to this court (Division I) for a writ of review for the purpose of determining the validity of said order of department 12.
*19
After decision annulling said order by this court
[Williams
v.
Superior Court]
(Cal. App.)
1. Did respondent court have jurisdiction to order petitioner to prеpare said transcript “in accordance with the terms” of a contingent agreement, which is contrary to public policy and void?
2. Did the judge of department 34 exceed his jurisdiction by interjecting his order into a proceeding whicli had been prеviously assigned to and was regularly pending and undetermined before department 12 of the same court?
3. Did the court have jurisdiction to enter its said order of January 4, 1939, without first giving notice to the respondent Davis ?
4. Did department 34 have jurisdiction to make said ordеr of January 4, 1939, summarily ordering specific performance of the written portion of an unadjudicated, partly oral and partly written contract in a collateral and gttm-criminal proceeding ?
5. Did department 34 have jurisdiction to make such an оrder as that of March 4, 1940, adjudging petitioner guilty of contempt ?
1. Petitioner contends that the Supreme Court decided only that department 12 had no jurisdiction to vacate said order of January 4th. But in reaching that very conclusion the Supreme Court must have determined that in making said order, department 34 did have jurisdiction. It could not have decided otherwise in view of the provisions of
*20
the Constitution which vests the superior court with jurisdiction over such matters and not in a particular department of said court. (Const., art. VI, sec. 6.) It was held
(Williams
v.
Superior Court,
14 Cal. (2d) 656 [
But petitioner contends that the court exceeded its jurisdiction in that the оrder required petitioner to prepare a transcript “in accordance with the written agreement” which is void as against public policy. It is conceded that the Supreme Court correctly held that the validity of the agreement could not properly be determined in the case before it but only in an appropriate action filed for that purpose. After arrangements are made for the reporter’s compensation, it becomes his duty to deliver the transcript with reasonable promptness to the clerk
(Gjurich
v.
Fieg,
2. Petitionеr’s second contention is that department 34 by said order exceeded its jurisdiction by interfering with a proceeding which was regularly pending before department 12, where the law suit had been tried. But this is contrary to said decision of the Supreme Court which holds that department 34 did have jurisdiction to make said order because the proceeding had been duly assigned to department 34.
3. The contention that department 34 had no jurisdiction to enter said order of January 4th without first giving notice to respondent Davis, finds nо support in law. It was not essential to the jurisdiction of the court that any notice be given to respondent. When the court’s attention was directed to the fact that the petitioner had been remiss in the preparation of the transcript, it was a matter purely between the reporter and the court, and the court could not do otherwise than to require petitioner to proceed with the transcribing of his notes. Such notice to appellee of the proposed proceedings of January 4th could neither add to nor take from the duty or the power of the court to perform the duty enjoined by the statute. Respondent had already stipulated to extend the time for the preparation of the transcript to Februаry 28, 1939, practically eight weeks later than the day of the first order of department 34. A notice to him, therefore, of the court’s intention to enforce the timely preparation of the transcript would have performed no useful office, for hе would have no interest in the transcript until it should be finally presented for certification.
4. The fourth issue raised by petitioner has been answered in our discussion under the first proposition. We observed, however, that the record contains no evidence of the alleged oral agreement.
5. As to the jurisdiction of the court to adjudge petitioner guilty of contempt on May 4, 1940, petitioner contends *22 that there is no evidence of wilful disobedience of said first order of January 4, 1939. Since the court did havе jurisdiction to enter said order, it necessarily follows that continued failure of petitioner to comply therewith was a contempt of the court’s authority. (Code Civ. Proc., sec. 1209, subd. 5.) Having such power and jurisdiction, our attention is confined to a consideration of whether there was any substantial evidence before said department 34 which would sustain its jurisdiction to punish petitioner for contempt. (Bridges v. Superior Court, supra.) In order to sustain an order for contempt, two essential facts must appear, namely: (1) There must be notice or actual knowledge of the order, for the disobedience of which citation for contempt has issued; and (2) the act ordered to be done must be within the power of the eontemnor to perform. (5 Cal. Jur. 913, sec. 20.)
The record clearly shows that petitioner had notice of the entry of said first order and he makes no claim that he did not have knowledge thereof. In the second place, there is no evidence of petitioner’s inability to perform. His answer to the contеmpt citation discloses that immediately following the entry of the order of January 4, 1939, he presented his grievances to the judge of department 12, who advised him that said agreement for the preparation of the transcript was void; that it had been imрossible for him to comply with the order without resulting either in complete collapse of his physical condition, with permanent injurious effects to himself and to his life, or in the alternative, without causing him serious financial loss, which he averred he would be unаble to bear. He then proceeded to state that the immediate preparation of the balance of the transcript would require a period of 60 days exclusively upon said transcript without deriving any income whatsoever from any sоurce, and necessitating his refusal to take any work of any nature whatsoever during said period, and that his physical and financial loss would be irretrievable. In nothing that he averred did petitioner offer any valid excuse or prove his inability to comрly with the court’s order. The burden of proving his inability to comply with the order was upon petitioner.
(In re Pillsbury,
For the foregoing reasons, the orders are affirmed.
Wood, J., and McComb, J., concurred.