Muchenberger v. City of Santa Monica

RICHARDS, J.

The respondent herein, the Santa Monica Land Company, has presented a motion to strike out the reporter’s transcript on both appeals herein, upon the ground that as to a certain portion of said transcript the official reporter was not present during the presentation to the trial court of the matters embraced in that particular portion thereof. The record herein discloses that the action in which these appeals were taken was one wherein the plaintiffs sought to compel the city of Santa Monica, as trustee, to perform the terms of a trust contained in that certain act of the legislature of the state of California known as “An act granting certain tidelands and submerged lands of the State of California to the City of Santa Monica upon certain trusts and conditions,” approved April 10, 1917, and for such other and appropriate orders and decrees as should be meet in the premises; that upon the issues joined therein the cause came on for trial in the early part of the year 1925, before the court sitting without a jury, and that the trial of said cause lasted several days, during which oral and documentary evidence was received, and also during which main trial of the cause the official reporter of said court was present and reported the same; that on the fourth day of March, 1925, the cause was submitted to the court for decision upon the evidence theretofore taken; that on the twelfth day of May, 1925, the judge of said court filed an opinion wherein he indicated what his decision in said cause would be and that in the course of said opinion he indicated that there was a certain incidental matter relating to the details of certain work which the court suggested should be agreed upon by the parties and with reference to which the court indicated that, in the. event of the failure of the parties to so agree, it would appoint two engineers, one to be named by the plaintiffs and one by defendants, who, with the city engineer of the City of Santa Monica, should prepare and present to the court their recommendation as to the details of such work. The parties not having agreed, the court appointed said engineers, and also and in order to receive their report, and evidently for that purpose alone, set aside the submis

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sion of the cause and continued the further hearing thereon for-that particular purpose until such time as such report could be prepared and presented. The matter came on for hearing thereon on September 21, 1925, whereupon the report of said engineers, after being identified and verified by them, was presented and received in evidence by the court. At the time of the presentation thereof at said hearing the official reporter was not present and the report of said engineers was received and filed without his presence, but with the knowledge of all parties concerned that he was not present at said time, and without either suggestion or objection on the part of any of them. Thereafter and on the first day of December, 1925, the court filed its findings of fact and conclusions of law in said cause and also caused to be made and entered its judgment therein. The plaintiffs appealed from the whole.of said judgment, while the City of Santa Monica also filed its appeal from certain designated portions thereof. Both of these appellants united in the request to the official reporter for the preparation of the reporter’s transcript on both appeals, and such transcript was accordingly prepared and certified by such reporter in so far as the same related to the main trial of said cause down to the date of the first submission thereof. The said transcript as presented to the judge of the trial court for his approval and certification also was made to contain the order of the court for the reopening of the cause for the special purpose of receiving the report of said engineers and the proceedings at the time of the reception in evidence of said report. When the matter of the settlement of said reporter’s transcript came on for hearing before the trial court the respondent Santa Monica Land Company objected to the settlement of the same, basing its objection upon the ground that since no official reporter had been present when the written report of said engineers was identified and received in evidence no transcript could be prepared or settled upon said appeal under the alternative method provided in section 953a of the Code of Civil Procedure. The trial judge took the matter of the settlement of said transcript and the aforesaid objection thereto under. advisement and thereafter and on April 12, 1926, appended thereto the following certificate: