Opinion
Application for mandamus by Mina W. Williams and another against C. N. Andrews, as Judge of the Superior Court of the State of California, and J. B. McLees, County Clerk of San Diego County, to require certification of reporter’s transcript and transmission of clerk’s transcript and transmission of records. Mandamus for certification of transcript denied, and that for transmission of record to Supreme Court granted.
COUNSEL
L. E. Dadmun, of San Diego, for petitioners.
Eugene Daney and Frederic W. Stearns, both of San Diego, for respondents.
OPINION
HOUSER, J.
This is a petition for a writ of mandate directing Hon. C. N. Andrews, judge of the superior court of the state of California in and for the county of San Diego, to certify to the truth and correctness of a reporter’s transcript, and also directing that J. B. McLees, as clerk of the superior court of said San Diego county, transmit to the clerk of the Supreme Court of the state of California the clerk’s transcript and records prepared in accordance with the provisions of section 953a of the Code of Civil Procedure. A demurrer was interposed, which, while general in that it specifies that the petition does not state facts sufficient to authorize the issuance of the writ of mandate as prayed for, is also special in that it sets up alleged inexcusable delay on the part of petitioners in the matter of procuring the necessary certification of the transcript by the said judge of the trial court, as well as in procuring the transmittal to the said clerk of the Supreme Court of the said clerk’s transcript and other documents therein referred to.
No question is raised as to the regularity of any of the proceedings in the cause leading up to the preparation of the reporter’s transcript, and, in the absence of an answering affidavit as such covering the facts in the matter, it must be presumed that all statements contained in the affidavit accompanying the petition are true, and from which it appears, among other things, that within five days after the receipt by the clerk of the reporter’s transcript the said clerk served by mail upon the plaintiffs and the defendants in said action a notice fixing the time for the presentation of the transcript to the court for its certification in accordance with the provisions of section 953a of the Code of Civil Procedure, fixing a date for presenting said transcript for approval on the 3d day of September, 1921, at 10 o’clock a. m.; that on that date the judge of the trial court was absent on his vacation, and did not return until about the 1st day of October, 1921; that no objections were offered or made to the transcript by either the plaintiffs or the defendants, nor was there any suggestion or request made by either plaintiffs or defendants to insert in said transcript any matter not therein included; that upon the return of the trial judge he failed and neglected to certify to said transcript, and in the month of May, 1922, pursuant to a conversation with said judge, said petitioners requested the clerk of the department in which said judge presided to ascertain and to fix a date when it would be convenient to court and counsel for defendants to take up the matter of approving and certifying said transcript, but that neither the court nor the clerk at any time fixed any date pursuant to said request; that on the 15th day of January, 1923, in open court, and in the presence of the attorneys for defendants, plaintiffs insisted upon the court’s fixing a time for the approval and certification of said transcript, and the court did then and there set and fix the time as the 22d day of January, 1923, at 2 o’clock p. m., on which date, all parties being present, on the objection of counsel for defendants, the court refused and declined to approve and certify said transcript.
On the hearing of the alternative order made herein counsel for respondents made a motion, which was argued and submitted, to dismiss the writ on the ground, that if any appeal should be taken in the action, it was one which should be made to the Supreme Court, and for that reason the mandate, if any, should issue from the Supreme Court rather than from the District Court of Appeal. Section 4 of article 6 of the California Constitution directly confers such powers on District Courts of Appeal; and, while Chief Justice Beatty, in writing the opinion of the court in the case of Collins v. Superior Court, 147 Cal. 264, 81 P. 509, made it plain that "when a case is such that an appeal from the judgment of the lower court would properly be taken to the District Court of Appeal, a petition to prohibit the proceeding should be addressed to that court," and that it was desired "in the outset to make a precedent to be followed in like cases" thereafter, in a later case entitled Matter of Application of Davidson, 167 Cal. 727, 141 P. 216, in which a petition for a writ of mandate was commenced in the District Court of Appeal, but, because that court was of the opinion that it had no jurisdiction of the matter by reason of the fact that it had no direct appellate jurisdiction of the cause pending in the superior court, the District Court of Appeal declined to act, and transferred the application to the Supreme Court, it was said that
"The Constitution gives the District Court of Appeal original jurisdiction of proceedings in mandamus, in language identical with that giving such jurisdiction to the Supreme Court. Its jurisdiction in such matters is, therefore, coequal with our own and does not depend upon the existence of appellate jurisdiction over the case to which the mandamus relates."
And in that case it was further ordered that the papers be forthwith returned to the District Court of Appeal, and that that court proceed "to a decision of the cause, as in other cases." In Favorite v. Superior Court, 181 Cal. 265, 184 P. 16, 8 A. L. R. 290, Judge Shaw, in speaking of the question of jurisdiction, used the following language:
"There is no merit in the motion of respondent to quash the writ of prohibition issued by the district court. The motion was based on the claim that the case before the superior court was an action in equity— a case in which appellate jurisdiction is, by the Constitution, lodged in the first instance, in the Supreme Court alone (Const. art. 6,§ 4), from which fact, it is argued, an original proceeding in prohibition to prevent action by the superior court in such a case is cognizable only in the Supreme Court. This assumption is not correct. The same section of the Constitution gives equal and concurrent jurisdiction to the district courts and to the Supreme Court to issue writs of prohibition in all proper cases. So far as jurisdiction to do so is concerned, the questions of appellate jurisdiction and of the nature of the action in which the act sought to be prohibited is threatened are entirely immaterial. As a matter of policy and practice, both this court and the district courts, respectively, have at times refused to take jurisdiction of an original proceeding where the case involved was in the superior court and was originally appealable to the other court. [Citing cases.] But this practice was not adopted because of any want of original jurisdiction in such cases in either court."
There are some decisions by Courts of Appeal of this state from which it would appear that in circumstances such as are here presented no jurisdiction exists in this court; but, while such decisions are persuasive, they are not controlling. As the matter is one of "policy and practice," the proper course, so it appears to this court, is indicated in the case of Reclamation District v. Ash (Cal.App.) 208 P. 394, where it is said that
"Having once issued the alternative writ and thus signified its willingness to entertain the proceeding, a District Court of Appeal will not dismiss such proceeding merely because the subject-matter to which the writ pertains is solely of equitable cognizance and of which the Supreme Court has exclusive appellate jurisdiction."
It therefore follows that the motion to dismiss must be denied.
The petitioners contend that upon the presentation to the judge of the reporter’s transcript it was the duty of the judge to examine same, and, if found to be correct, to certify to the truth and correctness of the transcript. On the other hand, it is respondents’ contention that, because the judge failed and neglected to certify to said transcript within a reasonable time, the duty devolved upon petitioners to take immediate action in the matter; to which petitioners reply that, petitioners having done everything required of them by law, they could not be held responsible for the failure or neglect or laches of the officers of the court in performing their duty. The delay in finally bringing the matter to the attention of the court covered a period of over 16 months, and, while petitioners contend that it was not their duty to see to it that the transcript was certified within a reasonable time, as an answer to the charge of negligence preferred against them by respondents, petitioners show by their affidavits that after the 3d day of September, 1921 (which was the date originally fixed by the clerk for having the transcript certified and approved by the judge, and which matter could not receive the attention of the judge by reason of the fact that he was away on his vacation, from which he returned on about October 1, 1921), and on the 13th day of October, 1921, counsel for petitioners left the city of San Diego for the city of Washington, D. C., on legal business which occupied his time until November 23, 1921, when he returned to the city of San Diego, at which time he made inquiry of the judge’s clerk, and was informed by him that the transcript had not been approved; that thereafter he spoke to the judge about approving said transcript, but was again called to Washington, D.C., on the 3d day of January, 1922, and did not return to San Diego until the 25th day of February, 1922; that between the 13th and the 16th days of March, 1922, he was engaged in the trial of a case in the county of Imperial; that thereafter he again made injury of the judge’s clerk as to whether the transcript had been approved, but was again informed that it had not been approved; that thereupon, which was during either the month of May or the month of June, 1922, he spoke to the judge about approving the transcript, to which the judge replied that he did not wish to do so unless the attorneys for the respondents were present; whereupon counsel for petitioners requested the judge to fix some time for considering the matter, to which the judge replied that any time when he was not engaged, and which would be convenient to both sides, would be satisfactory to him; that thereupon counsel for petitioners requested the judge’s clerk to fix a date that would be convenient to the court and to notify counsel for petitioners and counsel for respondents as to the time so fixed; that thereafter, on or about the 15th day of January, 1923, counsel for petitioners, in the presence of counsel for respondents, requested the judge to take up the matter of approving said transcript, at which time the judge set the date for certifying and approving the same as of January 22, 1923.
The provisions of section 953a, Code of Civil Procedure, relating to this matter, are to the effect that, after the transcript has been filed with the clerk of the court, it shall be his duty to forthwith give the attorneys appearing in said cause notice that said transcript has been filed, and stating the time at which the transcript will be presented to the judge for his approval and certification. A consideration of some of the authorities shows as follows: The case of Town of Mill Valley v. Massachusetts Bonding & Insurance Co. (Cal. Sup.) 207 P. 253, involved, among other things, the delay of the stenographic reporter in preparing a transcript of the testimony within the statutory period, which delay was shown to have been unavoidable because of the extreme length of the transcript. It was held that, even if the stenographic reporter had been negligent in the preparation of the transcript, such default should not be properly charged to appellant, and the court said:
"When proceeding under section 953a the appellant must rely on the official conduct of the officers of the court. Their delay or default is not his delay or default."
In Jansson v. National Steamship Co. (Cal. Sup.) 208 P. 90, plaintiff presented the objection that no statement on motion for new trial had been prepared, settled, and filed at the time the motion for new trial was heard by the trial court. The record discloses that the defendant’s time to serve its proposed bill of exceptions was extended to March 29, 1915, and that a copy thereof was served upon plaintiff prior to the expiration of such extension; that thereafter, on April 30, 1915, plaintiff served on defendant a copy of his proposed amendments to defendant’s proposed bill; that on May 8, 1915, and within time, defendant notified plaintiff that defendant rejected the latter’s amendments, and that on said date the proposed bill and amendments were presented to the court for settlement. In considering that point the court said, among other things:
"When once in the hands of the clerk for the judge or court, the law does not specifically declare the time within which the judge must act upon it. The delay of the judge, if any, in settling the bill of exceptions, cannot, under circumstances such as are present here, be attributed to the moving party or his attorney, and he should not be made to suffer by reason thereof. It is the duty of the moving party to present the proposed bill and amendments, *** and that is exactly what was done here."
An Idaho case, entitled Johnson v. Ensign, reported in 34 Idaho, 374, 201 P. 723, is also in point. It is there held that, 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, and that, under the statute covering the matter, after a transcript is duly delivered to the trial judge for settlement, he becomes the actor; that 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. The Idaho statute governing the matter provided that
"The transcript, with any notice designating errors, shall be transmitted to the judge who tried the cause, *** and such judge shall forthwith settle the same, notifying the parties by such notice as he deems adequate of the time and place of settlement." C. S. § 6886.
It will be noted in the case of Town of Mill Valley v. Massachusetts Bonding and Insurance Co., supra, that, while the matter under consideration was only the failure of the stenographic reporter to prepare the transcript of the testimony within the statutory period, the court dealt generally with the question when it said that appellant must rely upon the official conduct of the officers of the court, and that their delay or default was not his delay or default. In such a case, after an appellant has procured the necessary order for the transcription of the testimony, there is nothing further possible that appellants may do in the premises. The work to be done is of such a personal character that the reporter who takes the testimony is the only person who can with any degree of accuracy transcribe his notes. If it be impracticable for him to perform his duties in that respect within the time prescribed by the statute, certainly the appellant ought not to be prejudiced thereby. The delay in such a case is excusable; but the facts in the case referred to do not fit the facts in the instant case. In Jansson v. National Steamship Co., supra, while the date when the bill of exceptions was presented to the court for settlement is shown, there is nothing in the opinion which indicates that there was any delay on the part of the judge in settling the bill of exceptions other than that the bill had not been settled at the time the motion for new trial was heard, and the court ruled that, inasmuch as the bill had been approved and was on file at the date of the making of the order, such hearing, at most, was a mere irregularity, and in no way injurious to plaintiff. The language of the court that, under the circumstances as were then presented, the delay of the judge could not be attributed to the appellant, while helpful in the instant case, is not conclusive. In the Idaho case the ruling depended primarily upon the mandatory provisions of the statute requiring the judge on receipt of the reporter’s transcript, with the "notice designating errors," to forthwith settle the same and to notify the parties by such notice as he deemed adequate of the time and place of settlement. The great difference between such a statute and section 953a, Code of Civil Procedure, is that section 953a contains no provision with reference either to the time when the judge shall certify to the reporter’s transcript nor regarding the giving of any notice by the judge to any of the parties to the action; hence the decision in the Idaho case is not particularly apt.
The California cases dealing with the other side of the question are to the effect that it is the duty of the appellant at all times to take whatever steps may be necessary to bring the matter to the attention of the court, and to show some excuse or explanation for any delay in taking such steps.
In Miller v. Queen Insurance Co., 2 Cal.App. 267, 83 P. 287, it appeared, as in the case at bar, that the first delay in settling the bill of exceptions was caused by the absence of the trial judge. After his return no action was taken in the matter for perhaps four months, at the expiration of which time, and for a period of another month, the attorneys met with the judge at intervals, and attempted to agree upon a settlement of the proposed bill, however without success. A delay of five months thereafter then occurred, when a motion was made by plaintiff to dismiss defendant’s motion for a new trial. The court said:
"Upon the foregoing facts the burden was thrown upon the defendant to show some excuse or explanation for its delay in taking the steps requisite for enabling the court to hear and determine its motion for a new trial, including the settlement and filing of the bill of exceptions setting forth the matters upon which the motion was to be heard; otherwise, the court would be authorized to hold that it had not acted with due diligence and to grant the motion of the plaintiff. The defendant was the moving party in the proceeding for a new trial, and the burden was at all times upon it to take whatever steps were necessary to enable the court to hear its motion. Kubli v. Hawkett, 89 Cal. 638, 27 P. 57; San Jose Land Co. v. Allen, 129 Cal. 247, 61 P. 1083; Mowry v. Weisenborn, 137 Cal. 110, 69 P. 971; Galbraith v. Lowe, 142 Cal. 295, 75 P. 831."
In the companion case of Miller v. American Central Insurance Co., 2 Cal.App. 273, 83 P. 290, the court said:
"The fact that the judge was absent from the city at the time the engrossment was completed, and for several days thereafter, did not relieve the defendant from the necessity of diligence in ascertaining the date of his return and in seeking to procure his authentication to the bill."
In this connection it should be remembered that the duties of the judge are much more emphatically expressed in the statute relating to the settlement of bills of exception (Code Civ. Proc. § 650) than they are provided for in the statute covering the approval and the certification of the reporter’s transcript (Code Civ. Proc. § 953a). In the former the statute is that, "when received from the clerk, the judge must designate the time at which he will settle the bill. *** At the time designated, the judge must settle the bill"— while in the latter statute no direct duty devolves upon the judge, excepting that "at the time specified in the notice of the clerk to the attorneys said transcript shall be presented to the judge for his approval," etc.
Having to do with the duty of an appellant in a matter of this kind, it is said, in Estate of Depeaux, 118 Cal. 523, 50 P. 683, that
"It is the duty of the party seeking to avail himself of a bill of exceptions, for the purpose of obtaining a review of the action of the superior court, to take whatever steps may be necessary to procure its settlement."
And in Smith v. Jaccard, 20 Cal.App. 280, it is held that it is the duty of an appellant as the moving party to take the necessary steps to procure the filing of the reporter’s transcript, and for want of diligence on the 1002 part of appellant in that regard the court has power to terminate proceedings for procuring such transcript. Galbraith v. Lowe, 142 Cal. 297, 75 P. 831, and Dorcy v. Brodis, 153 Cal. 675, 96 P. 278, are authorities to the effect that
"The motion for a new trial is an independent proceeding in an action, in which the burden of acting is at all times upon the moving party."
And as having a bearing upon this phase of the question, see Moore v. Kendall, 121 Cal. 145, 53 P. 647.
The petitioners’ delays in the instant case cover a period of over 16 months. After the judge’s return on October 1, 1921, from his vacation, a period of 12 days elapsed before counsel for petitioners left San Diego for Washington, D. C. Upon his return to San Diego, on November 23, 1921, nothing was done by him in connection with getting the transcript approved by the judge other than the making of a single inquiry of the judge’s clerk whether or not it had been done. Matters remained in statu quo until January 3, 1922, a period of about 6 weeks, when counsel for petitioners again went to Washington, D. C., from which place he again returned to San Diego on February 25, 1922, where he remained quiescent, so far as this matter was concerned, until the 13th of March, 1922, when he was absent from San Diego for a period of three days. On his return he again contented himself with making an inquiry of the judge’s clerk, who informed him that the transcript had not been approved. Nothing further appears to have been done by counsel for a period of 2 or 3 months, when he took occasion to speak to the judge about approving the transcript, to which the judge replied that he did not wish to do so unless the attorneys for respondents were present. Counsel then requested the judge’s clerk to fix a date for hearing the matter, and to notify attorneys on either side thereof; but nothing was actually done thereafter by anybody connected with the case until the 15th day of January, 1923, a period covering at least 7 months.
As has been indicated, the weight of authority is to the effect that the burden is cast upon the appellant in a matter of procuring the approval and certification by the judge of the reporter’s transcript. That he must act diligently in that regard is beyond question. Petitioners’ delays in procuring action by the judge were unreasonable and are not satisfactorily explained. Petitioners have been guilty of gross laches in the premises, and are not entitled to the relief which they seek at the hands of this court. In the circumstances the judge of the lower court was right in refusing his approval and certification of the transcript.
Neither argument nor authority has been presented by either side with reference to the propriety of the issuance of the writ prayed for as to respondent J. B. McLees, acting in the capacity of clerk of the superior court, requiring him to transmit to the clerk of the Supreme Court the clerk’s transcript and records prepared in accordance with the provisions of the statute. As to that feature of the matter, no reason being assigned for its refusal, it is ordered that the writ issue as prayed; otherwise the issuance of the writ prayed for is denied.
We concur: CONREY, P. J.; CURTIS, J.