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District Court of Appeal, Second District, Division 2, California.


Civ. 9670.

Decided: May 24, 1934

Ben F. Griffith and Malcolm Archbald, both of Los Angeles, for petitioner. Everett W. Mattoon, F. M. Cross, and A. W. Brunton, all of Los Angeles, for respondents.

Defendants in a civil action having appealed from a judgment in the Superior Court, the plaintiff, after delay in filing the transcript, presented therein a motion for an order to terminate its preparation, which motion was denied without prejudice. Thereafter said motion was renewed, whereupon a stipulation of the parties was entered in the minutes that it be denied on condition that the transcript be filed within thirty days, otherwise that it should be granted. Upon ex parte motion and without the defendants' knowledge that said transcript had not been filed, an order was entered terminating the preparation of the record on appeal. Thereafter another attorney was instructed to move the trial court that said order be vacated on the ground of mistake, inadvertence, surprise, or excusable neglect, in accordance with the provisions of section 473 of the Code of Civil Procedure. The plaintiff thereupon instituted the instant proceeding in prohibition, seeking to restrain the hearing of such motion, asserting upon information and belief that if heard it will be granted and if granted she will have no plain, speedy, or adequate remedy at law. The allegations of the petition herein are denied, and defendants insist that the right of appeal from an order such as prayed below is afforded by section 963 of the Code of Civil Procedure.

That the Superior Court was invested with jurisdiction to make an order terminating proceedings to procure the record for appeal is unquestioned, and it must be conceded that it has jurisdiction over its orders and power to modify or set them aside. Templeton v. District Court, 47 Cal. 70; Estate of Stevens, 83 Cal. 322, 23 P. 379, 17 Am. St. Rep. 252; City of Los Angeles v. Oliver, 102 Cal. App. 299, 283 P. 298. Orders relating to the preparation and approval of records in a trial court for purposes of appeal are special orders made after final judgment. W. J. Somers Co. v. Smith, 45 Cal. App. 703, 188 P. 311. From such orders, the parties aggrieved may appeal. Code Civ. Proc., § 963. Where the right of appeal exists and error, if any, may so be corrected, an application for prohibition will be denied upon the ground that the petitioner has a plain, speedy, and adequate remedy at law. City of San Bruno v. Superior Court, 171 Cal. 272, 152 P. 731; Bullard v. Superior Court, 106 Cal. App. 513, 288 P. 629.

The alternative writ of prohibition is discharged, and the writ denied.

CRAIG, Justice.

We concur: STEPHENS, P. J.; SCOTT, Justice pro tem.

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