Specialty Oil Tool Co. v. Ames.

JENNINGS, J.

Petition for a writ of mandate to require respondent to certify to the correctness of a certain transcript of proceedings had in an action in which this petitioner was defendant and -one Roy H. Moore was plaintiff. It appears from the petition that in the action of

Moore

v.

Specialty Oil Tool Co., a Corporation,

tried in the superior court, judgment was rendered against the defendant, this petitioner;

[284]

that petitioner, desiring to appeal from the judgment thus rendered, proceeded under the so-called alternative method, and in accordance with the provisions of section 953a of the Code of Civil Procedure filed with the court a notice of appeal from the judgment and a request for the preparation of the clerk’s transcript; that thereafter petitioner duly filed the clerk’s transcript and the reporter’s transcript on appeal and presented the reporter’s transcript to respondent for his approval; that respondent refused to certify the reporter’s transcript for the reason that the testimony and proceedings in the cause up to the hour of 11 o’clock A. M. of the first day of trial were not included in the transcript, such testimony and proceedings having been reported by a court reporter who died shortly thereafter. It is further alleged in the petition that a

bona fide

effort to transcribe the notes of the deceased reporter was made by the reporter who reported the remainder of the proceedings and that the endeavor was made to secure other persons experienced in transcribing notes to make the transcription, but that such efforts proved unsuccessful. The allegation is made that the reporter’s transcript presented for respondent’s approval contains substantially all of the evidence submitted during the trial and that it contains everything necessary to a fair determination of the appeal and that petitioner is willing to accept the transcript and to prosecute its appeal on the record as submitted. It is made to appear that the proceedings reported by the deceased reporter consisted of opening statements of opposing counsel and the testimony of a witness produced for the purpose of identifying certain documents which were subsequently admitted in evidence under stipulation of counsel; that respondent has offered to stipulate that this statement of the proceedings reported by the deceased reporter may be included in the proffered transcript and has requested the successful plaintiff in the action to submit an amendment to the transcript in the event he considers the transcript submitted to be incomplete, but that plaintiff refuses to enter into the offered stipulation or to submit any amendment to the transcript.