James v. McCann

McFarland, J. This is a petition for a writ of mandate to compel the defendant to settle a certain bill of exceptions; and it was submitted upon a demurrer to the complaint or petition.

The plaintiff (or petitioner), Sarah M. James, and one Leonora A. James, were hostile contestants in the court of the defendant (or respondent) for letters of administration on the estate of William E. James, deceased. That contest, after a full trial, was decided by the court in favor of said Leonora, and judgment was entered accordingly. The petitioner herein (Sarah) then duly filed her notice of and undertaking on appeal; and afterwards, and within the proper time, prepared and served on said Leonora a draft of a bill of exceptions. The said Leonora duly prepared and served on petitioner certain amendments to said draft; and the draft and amendments were duly presented to said respondent, who designated the [514]twenty-seventh day of October, 1891, at ten o’clock, A. m., as the time when he would settle said bill. At that time the parties appeared, and the settlement was begun and proceeded with until the twenty-ninth day of said month, at which time a large part of said bill had been settled. But on last said-named day the attorney of said Leonora moved that all further proceedings in the settlement of said bill be stayed until certain fees of the short-hand reporter of the court should be paid; and the judge (respondent herein), against the objection and exception of petitioner, ordered “ that all proceedings herein be stayed until the above amount, to wit, forty-five dollars and fifty-five dollars, making a total amount of one hundred dollars, be paid by Sarah M. James to said reporter.” And since then the respondent has refused to settle said bill of exceptions because said Sarah has not paid said reporter’s fees, and declares that he will not settle said bill, or any bill, of exceptions in said cause, unless said Sarah shall first pay said fees. It appears that during the trial of said contest for administration between said Sarah and Leonora, the court on one occasion made an order “ that each party in this action pay the reporter forty-five dollars for short-hand reporting,” and that at a later period in the trial it made another order “that Sarah M. James and Leonora A. James each pay the reporter fifty-five dollars for reporting herein,” and it is for the failure of said Sarah to pay the amounts stated in said two orders that the respondent refuses to settle the bill. It is alleged in the petition, and therefore must be taken as true, that said short-hand reporting referred to in said orders meant the taking of short-hand notes of the testimony and proceedings as the trial progressed, and not the transcription of said notes into long-hand.