Cartwright v. Superior Court

WHITE, P. J. From the petition it appears that petitioner, individually and as special administrator of the estate of [301]Benjamin B. Cartwright, deceased, was the plaintiff in a superior court action against Alexander Benjamin Cartwright, Sr., et al., in which case judgment was rendered in favor of the defendants. Plaintiff thereafter, on July 20, 1949, filed a notice of appeal from such judgment, which appeal is now pending, being numbered Civil No. 17426 in the District Court of Appeal.

It further appears that petitioner made the usual request to the county clerk to prepare the reporter’s and clerk’s transcripts on appeal. On August 9, 1949, the clerk notified petitioner in writing “that the cost of a clerk’s transcript on appeal, with one copy, is $28.54, and that an extra copy for appellant’s use would cost appellant an additional $8.10; . . . and on August 18, 1949, petitioner deposited with said clerk in response to said demand and not otherwise the sum of $36.64, and protested said demand and deposit to the extent of . . . $8.10 for a copy of said transcript to be retained by said clerk. ’ ’

The petition further sets forth that a similar notice from the clerk stated that the reporter’s estimate for the reporter’s transcript, “including one copy to remain on file with the clerk,” was $450, “and that arrangements for an additional copy for appellant’s office use would have to be made with respondent court reporter.” Petitioner thereafter made the required deposit “under protest in so far as the same included a charge by said reporter for preparing more than one carbon copy to be delivered to appellant for his office use . . . and that appellant he not charged or required to pay for a copy . . . to remain on file with the clerk.”

It is further averred “That notwithstanding the foregoing protest and objection, and without any notice or hearing afforded petitioner, . . . respondent court made, rendered and entered an order ex parte, directing said clerk to pay said reporter . . . $450.00 upon the latter’s unverified petition for said sum without any itemization of the number of folios . . . or the number of copies.” Petitioner filed objections to various items in the reporter’s transcript and at a hearing thereon certain of the objections were allowed so that the transcript as finally settled contained 1,000 folios, according to the petition which at the legal rate of 25 cents per folio for the original and 10 cents per folio for a copy thereof, amounted to $350 in all, in place of petitioner’s deposit of $450 hereinbefore mentioned. The court reporter refused to make any refund