Tasker v. Warmer

THE COURT.

This mandamus

proceeding arose out of an action entitled

Tasker

v.

Cochrane,

wherein the petitioner as plaintiff and assignee of a law firm sought to recover attorney’s fees for services alleged to have been rendered by her assignor. After trial of said action, the jury returned a verdict in favor of petitioner and judgment was accordingly entered thereon. Upon motion duly made the respondent judge who presided at the trial of said action, made an order granting to the defendant therein a new trial. From the order granting such new trial the petitioner in this proceeding prosecuted an appeal to this court. In her request for a transcript to be used upon said appeal it was asked “that a transcript of all pleadings in said action, and the testimony offered or taken, exhibits and evidence introduced, offered or received, and all rulings, instructions, acts or statements of the court, also all objections or exceptions of counsel, and all matters to which the same relate be made up and prepared in accordance with sections 953a et seq., of the Code of Civil Procedure of California.” Thereafter the clerk of the lower court prepared a transcript containing certain papers, and the reporter prepared a transcript of the proceedings upon the trial. The clerk’s transcript was certified by the clerk and the reporter’s transcript was certified by both the reporter and the trial judge and the same were thereupon filed in this court. Petitioner, as appellant, seasonably filed her opening brief upon the appeal and the respondent therein filed her reply brief wherein for the first time it was contended that certain of the papers included in the clerk’s transcript were improperly placed therein and were not, therefore, properly authenticated. Upon such objection being made the appellant (petitioner) moved this court for an order allowing the withdrawal of the transcript to permit of its amendment so as to cause the matters erroneously set forth in the clerk’s transcript to be inserted in the reporter’s transcript and for a proper certification of the same as amended. The motion was granted and it

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was ordered that the transcript might be withdrawn from the files of this court and returned to the clerk of the lower court for correction and proper certification. In accordance therewith the transcript was withdrawn and petitioner moved the respondent judge for an order directing the transfer of the papers erroneously included in the clerk’s transcript to the reporter’s transcript and further moved said judge to certify to the latter transcript as amended. The respondent upon the appeal objected to the granting of said motion upon the ground that the original request for a transcript had not complied with the provisions of section 953a of the Code of Civil Procedure, in that it was not sufficiently specific in its enumeration of the documents to be included therein. After hearing upon the motion, the trial court refused to cause the transfer of said papers to the proper transcript, or to further certify to the same. This proceeding in