278 P. 859 | Cal. | 1929
Petitioner, Sterling Corporation, seeks by mandamus to compel Honorable Elias V. Rosenkranz, as judge pro tempore of the Superior Court of the County of Los Angeles, to settle and allow a stenographic reporter's transcript, as provided in section 953a of the Code of Civil Procedure, for use upon appeal in an action wherein the said court rendered judgment against it as defendant and thereafter denied its motion for a new trial. Petitioner alleges that the trial judge refused to certify the transcript because he was of the view that petitioner had failed to comply with the provision of section 953a which requires a party appealing to file with the clerk a request for the transcript within ten days after notice of decision denying the motion for a new trial.
[1] Petitioner alleges that at the time it filed the request for the transcript with the clerk no written notice of the order denying the new trial had been served upon it, and that by virtue of section 953d of the Code of Civil Procedure, enacted in 1927 (Stats. 1927, p. 86), the ten-day period allowed by section 953a would not begin to run until written notice of the termination of the new trial proceedings had been served upon it, unless written notice thereof had been waived in writing or by oral stipulation made in open court and entered in the minutes, which was not the case here. Since the filing of the petition herein, this precise point has been determined in petitioner's favor by this court in Griffin v. Kent,
Riggs v. Guedemann,
[2] We conclude that the petition states facts which justified the issuance of the alternative writ, and that petitioner would now be entitled to the issuance of the peremptory writ if it had substantiated by proof the allegation of the petition that no written notice of the order denying the new trial had been served upon it. This it has failed to do It alleges that "no notice as required by said section (953d) was ever served on petitioner, and there was no waiver of notice by either of the methods mentioned in said section." In the reply and return to the writ this allegation is controverted by an allegation that "notice of denial of motion for new trial was served on September 25, 1928," which was six days after the motion had been denied, according to the allegations of the reply. In this event, the ten-day period commenced to run on September 25th, and had expired when petitioner filed its request for a transcript on November 17, 1928. The reply to the writ admits that an affidavit of service of said notice of denial of motion for a new trial was not filed with the clerk until December 1, 1928, which was after petitioner had filed its request for a transcript. But if the notice had in fact been served, the absence *373
from the Clerk's files of an affidavit would not enlarge the rights of petitioner. Petitioner introduced no evidence in support of its allegation of nonservice when the matter came on for hearing in this court, nor did it stipulate with respondent as to the facts, but instead it joined with respondent in submitting the matter on the pleadings and papers on file. The burden is upon the petitioner in a mandate proceeding to prove every fact that lies at the foundation of his proceeding (Cothran v. Cook,
Attkisson v. Reynolds, supra, relied on by petitioner, in which it was held that the burden was upon the appellee, rather than the appellant, to show that written notice had been given as required by section 953d, involved a motion to dismiss made by the appellee, upon whom the burden rested, as moving party, to present facts justifying a dismissal of the appeal. Here the appellant has initiated a proceeding to compel the trial judge to settle the transcript in order that it may better prosecute its appeal, and the burden was upon it to establish the facts entitling it to the relief claimed.
Writ discharged.
Richards, J., Shenk, J., Preston, J., Langdon, J., Waste, C.J., and Curtis, J., concurred.