Sterling Realty Co. v. Relfe

SHENK, J. The petitioner, Sterling Realty Company, applied to this court to prove the reporter’s transcript of the record on appeal in the case of Sterling Realty Co., Plaintiff, v. Emily Relfe et al., Defendants (No. 279945 in the [407]Superior Court in and for the City and County of San Francisco), and to have the chief justice certify such record, pursuant to the provisions of section 652 of the Code of Civil Procedure. An order to show cause was issued.

The plaintiff commenced the pending action to quiet title to numerous lots in the city and county of San Francisco. The petition herein discloses that the plaintiff had been the owner of the lots, but that they had been sold to Emily Relfe, defendant in said action, pursuant to street improvement assessment bond foreclosures. The plaintiff in said action applied for a temporary restraining order and a temporary injunction. The court issued an order restraining the execution and delivery of any deed or deeds to the property pending the hearing on an order to show cause why a temporary injunction should not be granted. The defendants answered and the issues framed by the pleadings came on for trial without any furthe^' action or hearing in the injunction proceeding. The court made and filed its findings of fact and conclusions of law in favor of the defendant and rendered judgment accordingly.

The plaintiff appealed from the judgment and gave notice for the preparation of a transcript pursuant to section 953a of the Code of Civil Procedure. Upon the hearing for the settlement of said transcript, the defendant, city and county of San Francisco, moved to strike therefrom the application for the restraining order, the affidavit in support thereof and the order to show cause issued thereon. The court granted the motion on the ground that the same were not a part of the trial proceedings and refused to certify the transcript as “in accordance with the facts”, unless such matter was deleted. The plaintiff thereupon applied to this court to have the transcript certified with the inclusion therein of the matters ordered stricken by the trial judge.

The petitioner asserts that the refusal of the trial judge “to certify the transcript in accordance with the facts” will deprive it “of its substantive legal rights in the prosecution and presentation of its appeal”. But nowhere is it shown that the exclusion or inclusion of said matter would affect any question arising upon the appeal from the judgment, which is on the merits of the case. The petitioner appears to rest upon the contention that certain language of section 953a of the Code of Civil Procedure authorizes the granting of its request. The pertinent provision of that section is: