Going v. Guy

SHAW, J.

This is an application for a writ of mandate to compel the defendant, as judge of the superior court, to certify a transcript to be used on an appeal to this court from an order of the superior court confirming a sale of real estate in the Matter of the Estate of Francis W. Bradley, deceased, being the appeal No. L. A. 3562.

[281]

The plaintiffs are the appellants in said appeal. In preparing their transcript on appeal they proceeded under section 953a of the Code of Civil Procedure. In their notice to the clerk, under that section, they requested a transcript of the testimony and proceedings taken and had at the hearing, and also that there be included in said transcript copies of the petition for sale, the order of sale, the return of sale, the notice of hearing of the return, the bid received, and the order of confirmation appealed from. The transcript of the testimony and proceedings at the trial was written out by the stenographic reporter, bound together and labeled “Reporter’s Transcript” and certified by him. The copies of the documents and orders above mentioned, together with the notice of appeal, were made, bound together and labeled “Clerk’s Transcript” by some one whose identity is not disclosed, and were certified by the county clerk to be correct. Upon due notice, these two documents were presented to the defendant for his approval and authentication as the transcript on appeal. He examined them and thereupon certified to the truth and correctness of the matters contained in the document labeled “Reporter’s Transcript,” but refused to certify or otherwise authenticate the document labeled “Clerk’s Transcript,” or to sign a certificate including both of them as the transcript on appeal. It is admitted that the documents embraced in the so-called “Clerk’s Transcript” are correct.

We think the two documents constituted the transcript contemplated by section 953a, in cases such as this, where the order appealed from is not required to be included in what is technically designated as a judgment-roll. The first paragraph of the section authorizes the appellant, by notice to the clerk, to require that a transcript of the testimony and proceedings at the trial be made up and prepared. The second paragraph makes it the duty of the stenographic reporter to prepare a transcript of his phonographic report of the trial “including therein copies of all- writings offered or received in evidence,