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District Court of Appeal, Second District, Division 1, California.


Civ. 12242

Decided: May 31, 1939

Delvy T. Walton and B.R. Ware, both of Los Angeles, for petitioner. J.H. O'Connor, Co. Counsel, and Douglas De Coster, Asst. Co. Counsel, both of Los Angeles, for respondent Superior Court.

This is an application for a writ of review by which the petitioner seeks to have annulled an order made by a judge of the superior court vacating a previous order of another judge of that court. An alternative writ having been issued by this court, the matter is now presented for decision upon the petition, the demurrer of respondent court thereto, and a certified record of the proceedings had in the superior court.

Petitioner is the plaintiff in an action in the superior court wherein, on January 25, 1938, judgment was entered for the defendant, from which judgment petitioner appealed under the so-called “alternative method” (Code Civ.Proc., sec. 953a) and filed with the clerk a request for the preparation of a transcript, stating therein that arrangements had been made personally with the reporters for their compensation for preparing such transcript, as authorized by section 953b of the Code of Civil Procedure.

The present controversy arises out of the failure of the official reporter in the superior court who reported the major portion of the proceedings in the trial of the cause to proceed with the preparation of the transcript in accordance with the terms of an agreement between him and petitioner whereby the reporter agreed to furnish one original and one copy of the reporter's transcript “upon a contingent basis”. In substance, the agreement was that should petitioner be successful in her appeal or recover from the defendant either by judgment or by compromise, she should pay the reporter for the transcript at the statutory rate; but in any event the latter should be reimbursed as the work proceeded for the cost of supplies required to prepare the record. From the record before us it appears that this agreement, as subsequently modified (the changes not being here material), was fully performed by petitioner. Almost a year after the entry of judgment, in January, 1939 (the time for preparation of the reporter's transcript having been extended from time to time by order of the trial judge), petitioner secured an order in the order to show cause department of the superior court requiring the reporter to show cause “why he should not be compelled to proceed with the preparation of said record and the performance of his contract for the preparation thereof, and why he should not be suspended from his duties as an official reporter of this court until such record is completely prepared by him and settled by the trial court, *”. After a hearing the judge in the order to show cause department made an order “that the stenographic reporter * be and he is hereby ordered to proceed immediately with the preparation of the balance of the record reported by him in this proceeding *”. Thereafter a second order to show cause was issued by the same judge; but before the return day of such second order, the reporter himself caused a motion to be filed and presented to the judge who tried the cause (hereinafter referred to as the trial judge), seeking additional time in which to prepare the transcript and also praying for the “abrogation” of the agreement with the petitioner pursuant to which the preparation of the transcript had been undertaken “and the substitution therefor of an agreement which will reasonably compensate your petitioner for the preparation of said transcript”. The time of notice of this motion was shortened to one day, and after a hearing and argument thereon, the trial judge entered the order here sought to be annulled, and which is in parts material hereto as follows:

“* On January 4, 1939, said Judge Wilson issued an order, which was filed on that day, decreeing not only that said reporter proceed immediately with the preparation of said transcript, but that he specifically perform the aforesaid private agreement between him and the plaintiff.

“It is obvious on the face of the record that said judgment or order of January 4, 1939, was made without jurisdiction. If the proceeding were one properly a proceeding in, and as a part of, the pending case, the defendant, or his attorney, vitally interested in the granting or denying of such motion, was entitled to notice. If the proceeding were one for the specific performance of a personal agreement between Mr. Rappaport and the plaintiff, as the judgment might indicate, it is significant that no complaint was filed against Mr. Rappaport. If the proceedings were intended to be in the nature of mandamus, again no pleadings were filed and no proper process issued. *

“Now, therefore, this court on its own motion, and finding said order of January 4, 1939, to be void on the face of the record, and to clarify the situation with respect to the matter of said transcript to the end that an appropriate order, doing justice to all parties may be made, declares said order of January 4, 1939, to be void, vacates the same, and decrees the same to be of no force or effect. *

“* the court finds, adjudicates and decrees that the said agreement between said Samuel Rappaport and the plaintiff is contrary to public policy, is therefore unlawful, and void and that neither party to it can have or claim any rights, or enforce any remedies, thereunder. *

“The court hereby orders that the time within which the reporter's transcript may be prepared and filed shall be and is extended to, and including, the 31st day of March, 1939, with this further provision that if within that time an agreement is arrived at between said plaintiff and said reporter, which is free from any contingency feature, is acceptable to both parties, and provides for compensation within the limits fixed by C.C.P. 274, or if within that time plaintiff gives some assurance to the court of willingness to pay for a transcript at the rate fixed by said section of the Code of Civil Procedure, this court, upon a satisfactory showing of any such arrangement, and in the absence of any good cause appearing to the contrary, will grant a further extension of time of sufficient length to enable the reporter to complete and file said transcript.

“It is the further order of the court that upon consummation of an agreement in accord with the most recent proposal of said Rappaport as hereinabove recited, or upon payment, or reasonable assurance of payment, in accord with C.C.P. 274, the said Rappaport shall, and is hereby ordered to, proceed with all reasonable diligence to prepare said transcript and shall continue at such work with all due diligence until its completion.

“This court retains such jurisdiction as it may lawfully have of all matters pertaining to the preparation of said transcript to the end that any further appropriate orders may be made upon proper notice and in the interests of fairness to all parties involved.

“Done this 28th day of February, 1939.”

In support of the demurrer to the petition for the writ of certiorari, respondent superior court first contends that the order sought to be annulled is an appealable order under section 963, subdivision 2, of the Code of Civil Procedure, and therefore not subject to review by certiorari. In this respondent court is in error. The order before us is not a special order made after final judgment within the meaning of subdivision 2 of the cited section. As was said in Griess v. State Investment, etc., Co., 93 Cal. 411, 413, 28 P. 1041, “It in no manner affected the judgment or bore any relation to it, either by way of enforcing it or staying its operation, nor did it concern any pending motion in the case itself.” It was only the determination of the trial court that the reporter was not obliged to prepare a transcript on appeal in conformity with his agreement with appellant and could refuse to do his bounden duty until appellant made financial arrangements with the reporter in accordance with the terms laid down in the challenged order of the superior court. No appeal from the order of February 28, 1939, being provided for by statute, the question of the jurisdiction of the court to make such an order is reviewable in the present proceeding. Tinn v. U.S. District Attorney, 148 Cal. 773, 84 P. 152, 113 Am.St.Rep. 354; 4 Cal.Jur. 1034; 11A Cal.Jur. 217. And even though a right of appeal from the questioned order existed, it is now settled law that an appellate court, in the exercise of its discretion, may, and occasionally does, permit the validity of a trial court's order to be tested by extraordinary writ, such as where the circumstances are aggravated and justify immediate relief. When such conditions exist and where there would be consequential damages resulting from delay, the courts have allowed the writ. Golden State Glass Corp. v. Superior Court, Cal.Sup., 90 P.2d 75. Furthermore, the entire record of the proceedings being before us, it is proper for us to review all the facts shown and render such relief as may be proper in the premises. A.G. Col Co. v. Superior Court, 196 Cal. 604, 622, 238 P. 926.

Finally, it is urged by respondent court that the demurrer should be sustained for the reason that the superior court had jurisdiction of the parties and the subject-matter, thereby possessing authority to decide incorrectly as well as correctly. If the order here sought to be annulled were appealable, there might be some force to respondent's claim, but where the order complained of is nonappealable, the question of whether the court acted in excess of its jurisdiction in making the same may be properly reviewed on certiorari.

In the case at bar it is conceded that petitioner in proper form appealed from a judgment rendered against her in the superior court. Upon receiving notice of such appeal, it became the duty of the court, under section 953a of the Code of Civil Procedure, to “require a stenographic reporter thereof to transcribe fully and completely the phonographic report of the trial and also all proceedings taken on motion for a new trial and all matters to which the same relate”. Section 953b of the Code of Civil Procedure makes provision for the filing of an undertaking to secure the payment of the cost of preparing such transcript, or as provided in the same section, the appellant or person intending to appeal “may arrange personally with the stenographic reporter for his compensation”. It is not denied that petitioner here did make personal arrangements in writing with the reporter for the payment of the latter's fees. When this was done there was imposed upon the reporter by law the duty to make and file the transcription. Indeed, section 1085 of the Code of Civil Procedure entitles an appealing party to a writ of mandate to compel the performance by the reporter of this act which the law specially enjoins upon him as a duty resulting from the office he occupies as an official reporter of the superior court. The law desires and urges a speedy determination of appeals, and certainly it was never contemplated that after a litigant in conformity with the statute, makes a personal arrangement with the reporter for a transcript on appeal, the trial court upon application of the reporter can set aside such personal arrangements and relieve the reporter from performing his duty until the appellant shall make other arrangements with the reporter satisfactory to the latter and to the trial court. If the contract between petitioner and the reporter was unfair, against public policy or illegal, the reporter could resort to appropriate proceedings in a proper action before a court of competent jurisdiction to modify, reform, or terminate such contract, or to obtain any other claimed relief. Whatever disputes or differences may have arisen between the reporter and petitioner as appellant in the court below did not authorize the latter to make an order such as the one before us, thereby forcing the appeal to await the settlement or final determination of the private controversy between the stenographic reporter and the appellant who appears as petitioner here. Gjurich v. Fieg, 160 Cal. 331, 116 P. 745; Harris v. Burt, 47 Cal.App. 480, 190 P. 1058. When petitioner, as appellant in the trial court, complied with the provisions of section 953b of the Code of Civil Procedure providing for the reporter's compensation, the duty then devolved upon him to prepare and file the transcript, and it was incumbent upon the trial court, pursuant to section 953a of the Code of Civil Procedure, to require the reporter to perform such duty and not to excuse him therefrom.

In whatever light the record is viewed, it is clear that the court never possessed jurisdiction to make the order under review, and it follows that the same should be annulled. It is therefore ordered that the demurrer to the petition be overruled and that the order of the superior court hereinabove referred to, made under date of February 28, 1939, be and the same is hereby annulled.

WHITE, Justice.

We concur: YORK, P.J.; DORAN, J.