Rouse v. Superior Court

STONE, J.

This petition for writ of mandate to direct the trial court to certify an engrossed statement on appeal arose out of the following sequence of events: Petitioner-plaintiff appealed from a judgment entered after a 26-day trial to the court without a jury. Pursuant to Rules on Appeal, rule 7(a),

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plaintiff elected to proceed on a settled statement of the oral proceedings. He filed his proposed statement, to which defendants, the real parties in interest, objected. In addition, defendants filed their own proposed statement. Upon three occasions Judge Howden met with counsel and discussed changes in the proposed statements. The judge advised counsel that defendants' proposed statement would be used as the framework for a settled statement, rather than plaintiff's, and on that statement Judge Howden made some 60 notations for changes. This proposed statement containing the notations found its way into the clerk's file, but without either a minute order or formal written order by Judge 1-lowden. Shortly after the last conference Judge Howden died, and the matter was assigned to Judge Bradshaw.

Counsel for plaintiff then prepared a new statement, as he states, “in accordance with my detailed notes and also the instructions of Judge Howden as I recalled them”; he served a copy of the statement upon counsel for defendants, who then filed objections thereto; and counsel for plaintiff, in turn, filed comments on defendants’ objections.

A hearing was set before Judge Bradshaw, and during the conference counsel for plaintiff called Judge Bradshaw’s attention to the proposed statement with Judge Howden’s notations in the clerk’s file. At the conclusion of the hearing, Judge Bradshaw ordered the matter submitted.

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While the matter was under submission, counsel for plaintiff prepared a new document entitled “An Engrossed Statement on Appeal” conforming it to the proposed statement and Judge Howden’s notes thereon. He filed it with the County Clerk of Kern County with a request to have it certified by a judge of the Kern County Superior Court as the engrossed settled statement of Judge Howden. Judge Bradshaw refused to sign it except upon stipulation of counsel; whereupon plaintiff filed this proceeding in mandate.