Jones v. Busick

PLUMMER, J.

This is an application by the petitioner Ellis W. Jones for a writ of mandate requiring the respondent, as Judge of the Superior Court of the County of Sacramento, to certify a reporter’s transcript of the proceedings had in a certain cause entitled

Catherine M. Johnston

v.

Ellis W. Jones,

tried before the respondent as a Judge of the Superior Court of said Sacramento County.

The record before us shows that in a certain

mandamus

proceeding, wherein Catherine M. Johnston was the petitioner and Ellis W. Jones the respondent, a writ of mandate was issued by the respondent in this action, Honorable Chas. 0. Busick, as Judge of the Superior Court of Sacramento County, commanding the said Ellis W. Jones, as Sheriff of

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the. County of Sacramento, to release certain property from the levy of an attachment theretofore levied upon by the said Sheriff under attachment proceedings taken and had in the Superior Court of Sacramento County. After the granting of the writ of mandate herein first referred to the respondent in that action and the petitioner in this gave notice of an appeal under the alternative method provided for by section 953a of the Code of Civil Procedure. The clerk prepared the papers constituting the judgment-roll and the shorthand reporter transcribed the phonographic notes taken by him during the course of the trial. Upon presentation of the reporter’s notes, as typewritten, the respondent declined to certify to the correctness of the same on the ground that they were not complete, that a portion of the trial of this cause was had in the absence of a phonographic reporter and that in such cases section 953a did not apply, and the only method by which a record could be made up, and alleged errors, if any, presented on appeal was by a bill of exceptions.

The record as presented to us by the petition and affidavits submitted upon this application shows that on the twenty-second day of August, 1925, a partial hearing was had on the petition for a writ of mandate filed for the purpose of requiring the sheriff to release certain attached property. The affidavits are to the effect that the verified petition was offered in evidence, that certain oral stipulations were entered into in open court in relation thereto and that these stipulations were to some extent subsequently