Duarte v. Rivers

BARNARD, P. J.

This is an appeal from an order denying a motion for a new trial made under section 953e of the Code of Civil Procedure. The action involved the right to use certain channels and ditches, and the manner of handling certain excess flows of water. There were several groups of parties with conflicting interests. The judgment enjoined

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the Persian. Ditch Company and certain individuals from taking water from Mill Creek in excess of a given amount, and required them to control the flow of water into their ditch accordingly.

The trial of the action lasted five days and was concluded on February 6, 1946. After a considerable delay, in the filing of briefs and otherwise, findings and judgment were entered on November 8, 1946. A motion for a new trial was denied on December 24, 1946. Notice of appeal by the Persian Ditch Company and certain individuals was filed on January 22, 1947, and a request for a transcript was filed on January 28, 1947. On September 6, 1947, the appellants moved for a new trial under section 953e, on the ground that it was impossible to obtain a reporter’s transcript because of the disability of the reporter and because of the loss or destruction, in substantial part, of his notes. This motion was heard on October 17, 1947, and denied on October 21, 1947. From that order this appeal was taken.

The facts, as disclosed at the hearing, show a long and unsuccessful attempt to get the reporter to transcribe his notes during the period between the conclusion of the trial and the denial of the first motion for a new trial on December 24, 1946, and during another long period from that date to October 17, 1947, when the motion under section 953e was heard. The appellants’ counsel had ordered a transcript during the trial and after the conclusion of the trial they pressed the reporter to write up the testimony, which they desired to use in writing their briefs. Up to March 9, 1946, when the reporter ceased to work, he had transcribed the testimony of four witnesses and about half the testimony of three other witnesses. The testimony of some 14 other witnesses was never transcribed.

About March 13, 1946, counsel for appellants learned that the reporter had been sent to jail for being drunk and disorderly, and that he had formerly, before coming to Visalia, been addicted to overindulgence in intoxicants. The reporter was again sent to jail on March 21. Counsel saw the reporter 15 to 20 times between March 21 and April 22, and on practically every occasion he was drunk, incoherent, emotionally upset and unable to perform any work. On April 22, he was sent to the Stockton State Hospital. He was released for one week on May 25, in order to work on another transcript but failed to do this and instead of returning to the hospital wandered over California and in Oregon until December,