Kroeker v. Jack

SCHOTTKY, J. pro tem.

This is an appeal from an order denying a motion for a new trial, made under section 953e of the Code of Civil Procedure.

It appears from the evidence filed in support of said motion that said action was tried before the court on April 8, 9, 10, 11 and 12, 1940, and that judgment in favor of respondents was entered on June 13, 1940; that a notice of appeal was filed and a request and order for the preparation of a transcript made under the alternative method and that appellants paid to the reporter the sum of $515 therefor; that the evidence at the trial consisted almost entirely of oral testimony of witnesses and that the various counsel for appellants cannot recall the testimony, rulings and pro

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ceedings with sufficient accuracy to prepare a hill of exceptions ; that certain oral stipulations were made in open court, the wording of which cannot be recalled by counsel with sufficient accuracy to prepare a record thereof; that after the filing of the notice of appeal, F. Roy Davis, the official court reporter, secured an order extending his time for the preparation of said transcript to November 6, 1940; that commencing about August 14, 1940, counsel for appellants contacted said reporter on numerous occasions and endeavored to have said reporter complete said transcript, but said reporter became ill in November, 1940, and was unable to complete the transcript; that said reporter died on May 20, 1941; that counsel for appellants have been informed by all of the court reporters of Kern County that they could not read or transcribe the notes of said reporter.

Prior to 1931, a trial court was without jurisdiction to grant a new trial in a case where, because of the death of the court reporter, a reporter’s transcript could not be prepared.

(Diamond

v.

Superior Court,

189 Cal. 732 [210 Pac. 36].) The legislature in 1931 added a new section to the Code of Civil Procedure numbered 953e, which section reads as follows:

“Impossibility of obtaining transcript because of death or disability of reporter: Vacation of judgment or granting new trial. When it shall be impossible to have the phonographic report of the trial transcribed by a stenographic reporter as provided by section 953a of this code because of the death or other disability of a reporter who participated as a stenographic reporter at the trial, the court or a judge thereof shall have power to set aside and vacate the judgment, order or decree from which an appeal has been or is to be taken and to order a new trial of the action or proceeding.”