Wolcott v. Hudner
228 P. 46
Cal. Ct. App.
1924
Check Treatment
FINLAYSON, P. J.

This is а petition for a writ of mandate directing the Honorable John L. Hudner, Judge of the superior court in and for the county of San Benito, to certify tо the truth and correctness of a reporter’s transcript in accordance with the provisions of section 953a of the Code of Civil Proсedure.

Petitioner is one of the defendants in the case of Callaway et al. v. Wolcott et al., a case brought in the superior court in and for the county of Los Angeles and which was there tried before respondent, who was sitting in onе of the extra sessions of that court. The plaintiffs in that action recov *705 ered- judgment. From that judgment the petitioner in this proceeding took an appeal to the supreme court. It was his intention to bring up a record on appeal prepared under the alternative method, so called, i. e., under the method provided for by section 953a of the Code of Civil Procedure. Petitioner neglected, however, to file the necessary notice with the clerk within the ten-day period prescribed by that section to entitle him to a certified transcript of the reporter’s phonographic report of the trial. Because of this remissness on his part petitioner presented a motion under section 473 of the Code of Civil Procedure to be relieved from the effect of his failure to give the clerk timely notice of his intention to apрeal and of his request for a ‍‌‌‌‌​​​​​‌‌‌‌‌​‌​​‌​‌‌‌‌​‌‌‌​​‌‌​​​​‌‌​​‌​‌‌‌‌‌​‍reporter’s transcript. The motion was heard by the Honorable Victor R. McLucas, one of the judges of the suрerior court for Los Angeles County, who granted the motion and made an order relieving petitioner from the effect of his default. Thereupоn petitioner filed with the clerk the notice required by section 953a. Within a few days after the entry of Judge McLucas’ order an appeal thеrefrom to the supreme court was. taken by the plaintiffs in the action. Thereafter petitioner presented a reporter’s transcriрt to respondent with the request that he, as the judge before whom the case was tried, certify to the truth and correctness of the transcript. Respondent refuses to certify to the transcript pending the appeal from the order made by Judge McLucas.

Petitioner contends that sinсe the order made by Judge McLucas relieved him from the effect of his default in failing to give the clerk timely notice of his intention to appeal and of his request for a transcript, it is now respondent’s duty to certify to the truth and correctness of the reporter’s transcript. Respondent, on the other hand, contends that the appeal from the order of Judge McLucas stays all further proceedings thereon in the superiоr court, and that therefore it is not his duty to certify to the reporter’s transcript until final disposition shall have been made of that appeal.

In their presentation of the question as to respondent’s duty in the premises counsel on both sides have assumed that the order made by Judge McLuсas is appealable, and we, therefore, shall follow their lead by indulging in the same assumption.

*706 Sections 942-945 of the Code of Civil Procedure .рrovide a mode by which the “execution” of the judgment or order appealed from may in certain cases be stayed until the determinatiоn of the appeal, and section 949 provides that “in eases not provided for” in those sections the perfecting of an appеal “stays proceedings in the court ‍‌‌‌‌​​​​​‌‌‌‌‌​‌​​‌​‌‌‌‌​‌‌‌​​‌‌​​​​‌‌​​‌​‌‌‌‌‌​‍below upon the judgment or order appealed from,” except as to certain designated matters not necessary to be enumerated here. As the order of Judge McLucas granting relief to petitioner under section 473 is not one of thе orders mentioned in sections 942-945, it follows that the appeal from that order had the effect of staying all proceedings in the court below “upon the . . . order appealed from.”

It only remains to consider whether thе act of respondent, if he were to certify to the truth and correctness of the reporter’s transcript, would be a “proceeding” uрon the order appealed from within the meaning of section 949. That section, in so far as it is germane to the question here under consideration, has so frequently been construed by our supreme court that we are not left in doubt as to its general scope and effect. Thus in Dewey v. Supreme Court, 81 Cal. 68 [22 Pac. 333], it is said: “During the pendency of the appeal the court below could do no act which did not look to the holding of the subject of the litigation just as it existеd when the decree was rendered.” “The effect of the appeal,” says the court in Vosburg v. Vosburg, 137 Cal. 493 [70 Pac. 473], “is to remove the subject matter of the order frоm the jurisdiction of the lower court, and that court is without ‍‌‌‌‌​​​​​‌‌‌‌‌​‌​​‌​‌‌‌‌​‌‌‌​​‌‌​​​​‌‌​​‌​‌‌‌‌‌​‍power to proceed further as to any matter embraced therein until the appeal is determined.” (See, also, In re Dupes, 31 Cal. App. 698 [161 Pac. 276].) In Ruggles v. Superior Court, 103 Cal. 128 [37 Pac. 211], the court'says: “By the appeal the order or decree is set at large, and the subject matter removed from the jurisdiction of the lower court until the appeal has been determined and the matter remitted' back from the appellate court.” In State I. & I. Co. v. San Francisco, 101 Cal. 150 [35 Pac. 549], the court expresses itself as follows: “The effect of an appeal from a judgment when the proceedings thereon are stayed is to preserve the rights of the parties to the controversy in the same condition they were prior to the entry of the judgment.”

*707 Under the рrinciples as thus announced we think it clear that not only is it not respondent’s duty to certify to the transcript pending the appeal from Judge MсLucas’ order, but that he is without authority to do so until final disposition shall have been made of that appeal. Because the appeal from Judge McLucas’ order operated to stay all proceedings thereon in the superior court, respondent’s authority to certify to the truth and correctness ‍‌‌‌‌​​​​​‌‌‌‌‌​‌​​‌​‌‌‌‌​‌‌‌​​‌‌​​​​‌‌​​‌​‌‌‌‌‌​‍of the reporter’s, transcript subsequent to the appeal from the order is precisely what it was prior tо the making of the order. The effect of the appeal was to preserve the rights of the parties in the same condition they were before the order was made. Before he was relieved from the effect of his default by Judge McLucas’ order, petitioner had lost his right to prоceed with the preparation of a record under the alternative method (Des Granges v. Granges, 175 Cal. 67 [165 Pac. 13]); and contrariwise, the plaintiffs in the action had gained thе right to object to any certification of the record by respondent. It is clear, therefore, that if we were to direct respondent tо certify to the reporter’s transcript while the appeal from Judge McLucas’ order is pending, the rights possessed immediately prior to thе making of that order by the parties who appealed therefrom would not be preserved the same as they were before the ordеr. Our mandate would operate to carry the order into effect notwithstanding the appeal, and might render a reversal of the order entirely ineffectual. The case is not distinguishable in principle from Foster v. Superior Court, 115 Cal. 279 [47 Pac. 58], Stewart v. Superior Court, 100 Cal. 543 [35 Pac. 156, 563], State I. & I. Co. v. San Francisco, supra, and Estate of Loyd, 175 Cal. 699 [167 Pac. 157]. It results inevitably from these considerations that the writ should be denied.

The alternative writ of mandate heretofore issued is discharged ‍‌‌‌‌​​​​​‌‌‌‌‌​‌​​‌​‌‌‌‌​‌‌‌​​‌‌​​​​‌‌​​‌​‌‌‌‌‌​‍and the application for the peremptory writ is denied.

Works, J., and Craig, J., concurred.