Wrynn v. Superior Court

SHENK, J.

This is an application for a writ of mandate to compel the respondent judge to certify the reporter’s transcript on an appeal from a judgment taken pursuant to section 953a of the Code of Civil Procedure, and to settle a bill of exceptions as provided by section 650 of the Code of Civil Procedure, on an appeal from a special order made after said judgment was entered.

It appears from the petition that the petitioner instituted a contest of the will of Robert S. Lee, deceased, on the ground that she was a pretermitted heir of the deceased; that after trial the issue was determined adversely to her contention and judgment to that effect was entered; that on December 11, 1924, notice of the entry of judgment was served on her; that on the twentieth day of December, 1924, she filed with the clerk a notice of her intention to appeal from said judgment and a request that a reporter’s transcript of the proceedings be prepared in accordance with the requirements of section 953a of the Code of Civil Procedure ; that on the said twentieth day of December, 1924, she arranged with the reporter for his compensation for preparing the said transcript; that on the same day she served and filed a notice of motion for a new trial; that thereafter and within the time allowed by law she served and filed a notice of appeal from said judgment; that on February 16, 1925, the respondent court made and entered an order denying her motion for a new trial; that on February 19, 1925, one of the legatees under said will served and filed a notice of motion to terminate the proceedings pending in said court to procure a record on appeal, basing said motion on the ground that the petitioner had not proceeded with reasonable diligence in obtaining a transcript of the evidence to be used on said appeal and that more than forty days had elapsed since the filing of the notice requiring the reporter to prepare said transcript; that on February 27, 1925, the respondent court heard and granted said motion; that no evidence was offered in support of said motion and that the only evidence offered or received on said motion was the

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affidavit of petitioner’s counsel to the effect that the said appeal was being prosecuted in good faith and that said counsel had made the necessary arrangement with the reporter to transcribe and complete said record on appeal; that on March 10, 1925, the reporter completed the said transcript and filed the same with the clerk as required bylaw; that said clerk thereupon gave notice of the time and place for the presentation of said transcript to the judge for certification; that the respondent judge refused to certify said transcript notwithstanding demand on him so to do; that the petitioner appealed from the order of the court terminating the proceedings for the preparation of the said transcript, prepared a bill of exceptions on said last mentioned appeal and presented the same, together with amendments thereto proposed by said legatee, to the said judge for settlement; that upon said presentation the respondent judge refused to settle said bill of exceptions and announced that he would not settle the same; that the said reporter’s transcript is a full, true, and correct transcript of the proceedings had in said cause to which the same relate and that the proposed bill of exceptions is a full, true, and correct record of all matters pertaining to the said motion to terminate'-said proceedings for certification of said transcript.