Sullivan v. Superior Court

California Court of Appeal Nov 1, 1954 No. Civ. 16407Published

Before: Nourse

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Holding. The court held that the trial judge lacked the authority to stay the preparation of transcripts on appeal, as the clerk and reporter have a statutory duty to prepare and file them regardless of pending collateral matters.

Issues

Whether a trial court may order a reporter and clerk to delay the preparation of transcripts on appeal until a separate appeal is decided.
Whether a trial court has the authority to deny an appellant the right to perfect a record on appeal.

Disposition. Peremptory writ issued.

Quotations verified verbatim against the opinion

“It thus became the statutory duty of the clerk and reporter to complete and file the two transcripts, and the trial judge was wholly without power to direct them not to perform that duty.”

“On the filing of the notice of appeal the superior court loses jurisdiction over the ease—except in those limited matters relating to the perfection of the record.”

NOURSE, P. J.

Petitioners seek a writ of mandate to compel the San Francisco Superior Court, its official reporter and the county clerk to prepare, certify and transmit the clerk’s and reporter’s transcripts of two consolidated actions in which petitioners have filed a notice of appeal.

Petitioners allege as follows: On August 27, 1953, a judgment was entered in favor of the plaintiffs (petitioners were the defendants) adjudicating that petitioners’ fence constituted an encroachment on the plaintiff’s land; petitioners were enjoined from maintaining the fence and from interfering with the plaintiffs’ rights in their land; petitioners were also ordered to remove their fence from plaintiffs’ land and plaintiffs were awarded damages in the sum of $500. On October 6, 1953, petitioners filed a notice of appeal and on October 8, they filed a notice to prepare a clerk’s and reporter’s transcript. On October 9, 1953, Percy Girvin, the official court reporter, filed with the clerk a written waiver of the deposit of the reporter’s charges. On June 2, 1954, petitioners received from the clerk the Clerk’s Estimate of Cost of Preparing Transcript on Appeal. On June 11, 1954, petitioners paid $755 (the estimated cost) to the clerk. Thereafter petitioners repeatedly demanded the transcripts from the reporter and from the clerk.

On August 10, 1954, the trial judge filed with the clerk the following order:

“To: Martin Mongan, County Clerk, and Percy Girvin, Official Reporter of the Superior Court, Department No. 14 thereof:

“Pursuant to my oral Order to the Official Reporter that he prepare and file the transcript on appeal from the Order made and entered on December 17, 1953, granting Motion to Require and Fix Undertaking on Appeal in the sum of $5,000, and that said appeal be decided by the Supreme Court before the preparation and filing of transcript on appeal from the Judgment made given and entered on August 27, 1953;

“You and each of you are hereby directed that the transcript on appeal from the Order made and entered on December 17,1953, granting a motion to require and fix undertaking

[478]

on appeal in the sum of

Sullivan v. Superior Court

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NOURSE, P. J.

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