Lapique v. Superior Court

CONREY, P. J.

Application by John Lapique for a writ of mandate to compel the respondent judge to certify, to the correctness of a reporter’s transcript made pursuant to the demand of said Lapique, against whom judgment had been entered in an action wherein he was defendant, from which judgment he has an appeal pending in the supreme court. After alternative writ issued and an answer filed by the respondents, this matter has been submitted upon evidence taken by this court.

The judgment was entered on the eighteenth day of December, 1917. Within ten days thereafter, Lapique served and filed Ms notice of intention to move for a new trial, and filed his notice to the clerk requesting a reporter’s transcript.

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The petition herein alleges that the court reporter made a transcript and certified to the truth and correctness thereof; that thereafter, on July 2, 1918, petitioner believed said transcript to he full, true, and correct, and that on that

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day respondent judge, who tried the case, made an order settling and allowing said transcript as a part of the record, but that said order was made without notice having been given as required by section 953a of the Code of Civil Procedure; that on or about August 1, 1918, petitioner found that said reporter’s transcript was defective, and on August 15, 1918, he demanded of the reporter a further transcript, in response to which the reporter did, on the twenty-ninth day of August, 1918, certify a further reporter’s transcript; that on August 30, 1918, a notice was served on plaintiffs’ attorneys and filed, stating that said reporter’s transcript would be presented for allowance and settlement before the court on the fourth day of September, 1918; that on the fourth day of September the matter was continued until the 5th of September, 1918, and on the 5th of September was continued until the sixth day of that month; that at the hearings thereof Haas & Dunnigan, attorneys for the plaintiffs, did not appear; that on the sixth day of September, 1918, the trial judge refused to certify to the truth and correctness of said reporter’s transcript on the grounds, “first, that the order appealed from is not an appealable order, and, second, that the transcript is not complete in that it does not set forth the title of the court and cause”; that said reporter’s transcript is a full, fair, and correct transcript of the various proceedings described in the demand for transcript.