Richards v. Superior Court of S.F.

HENSHAW, J.

This is an original petition for a writ of mandate against the respondents, the Hon. W. P. Lawlor, judge of the superior court, and Platt B. Elderkin, his official phonographic reporter. The application for a writ is based upon the provisions of section 269 of the Code of Civil Procedure, as follows: “ Such reporter, or any one of them, where there are two or more, must, at the request of either party, or of the court in a civil action or proceeding, and on the order of the court, the district attorney, or the attorney for defendant in a criminal action or proceeding, take down in shorthand all the testimony, . . . and if directed by the court, or requested by either party, must, within such reasonable time .after the trial of such case as the court may designate, write out the same, or such specific portions thereof as may be requested, in plain and legible longhand, or by typewriter, or other printing machine, and certify to the same as being correctly reported and transcribed, and when directed by the court, file the same with the clerk of the court.” As to the phonographic reporter, a demand or request for a transcription is alleged, with the reporter’s refusal to comply therewith. As to the judge, it is averred that after request he has

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refused to designate a reasonable time within which the transcription by the phonographic reporter shall be made.

We are of the opinion that as to neither of the respondents should the writ issue. We are further of the opinion that for the correction of possible abuses, and for the elucidation of the proper procedure in such cases, a brief exposition of the matter will be both pertinent and valuable.

First, as to the judge: Section 269 contemplates that, in the exercise of his sound discretion, the judge may order a transcript of proceedings, or of any part of them, to be made by the phonographic reporter. When so ordered by the judge, or “by the court,” the fees of the phonographic reporter become a proper charge against the county treasury. (Code Civ. Proc., sec. 274.) Section 269 further contemplates that, in a proper case, the trial court, when called upon, will designate the “reasonable time” within which the phonographic reporter shall file the transcription of his notes. A proper case is one where it has become the duty of the phonographic reporter to make the transcription, and where, for the orderly and expeditious procedure of the case, the court is asked to designate the time within which the phonographic reporter shall perform his duty. But, manifestly, if the case be one where the shorthand reporter is not called upon to make a transcript, it is not one which calls for a declaration of time upon the part of the court.