Peebler v. Superior Court

DORAN, J. The plaintiffs in an action in the Superior Court of the County of Los Angeles, in which action the said [652]plaintiffs recovered judgment against the defendants, have applied to this court for a writ of prohibition to restrain the said superior court from taking any further steps or proceedings in connection with the preparation of a transcript pursuant to the provisions of section 953a of the Code of Civil Procedure for use by defendants in their appeal from said judgment. According to the petition herein the defendants filed their notice of appeal from the judgment on January 15, 1943 ,• and, over a period of nearly eleven months, defendants appear to have attempted unsuccessfully to perfect a record by way of a bill of exceptions. Plaintiffs’ motions to strike the proposed bill of exceptions and to terminate proceedings, made during the course of this period, were denied by the trial court. On December 7, 1943, defendants moved the trial court for an order dismissing and terminating the pending proceedings for a bill of exceptions and for an order allowing said defendants a period of ten days thereafter within which to give notice to the clerk to prepare a record on appeal under section 953a of the Code of Civil Procedure. This motion was granted, the court making the following order: “It is hereby ordered that the proceedings pending for bill of exceptions be now terminated and appellants are allowed a period of ten days from date hereof within which to give notice to clerk to prepare record on appeal under C.C.P. 953a.”

Petitioners contend that prohibition will lie in this instance because no remedy is available by way of appeal, the order in question not being appealable. It is true that the order above mentioned is not appealable, being in effect merely an order allowing appellants to proceed with the preparation of a record on appeal. However, it appears that petitioners will be afforded an adequate remedy in the ordinary course of proceedings on defendants’ appeal from the judgment. The question as to the jurisdiction of the trial court to grant the relief given defendants in the preparation of their record on appeal can be passed on, with a sufficient record, upon defendants’ appeal from the judgment. (Hume v. Lindholm, 85 Cal.App. 86 [258 P. 1006]; Kaltschmidt v. Weber, 136 Cal. 675 [69 P. 497] ; Kramm v. Stockton Electric R.R. Co., 22 Cal.App. 761 [136 P. 534].) The following cases serve to illustrate the fact that the question of defendants’ alleged default in the matter of preparing a transcript. [653]