FICKETT v. RAUCH

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

FICKETT v. RAUCH.

Civ. 15563.

Decided: February 20, 1947

Gordon M. Snyder, of Los Angeles, for Appellant. Paul R. Hutchinson, of Los Angeles, for respondent.

The question for decision is whether the trial court abused its discretion in denying defendant's motion for a new trial on the ground of his inability to have a phonographic report of the trial transcribed (Code of Civil Procedure, sec. 953e) by reason of (1) the death of Reporter Bagley who had reported the first two days of the trial and (2) of inability to find the deceased's stenographic notes.

December 31, 1942, respondent filed his complaint to establish a partnership with appellant in a trucking venture and for an accounting. Trial of the action was had on July 26 and 27, 1943, hereinafter referred to as the first two days. Evidence was heard on the issue of the partnership only. Without making written findings on the single issue or entering an interlocutory decree the court orally opined that a partnership had been established,* ordered an accounting and continued the matter for a trial of the accounting to August 23, 1943. Prior to the latter date appellant was in-inducted into the army, which fact suspended his obligations to the civil courts. Because the national government was then engaged in a global war and because appellant was a necessary witnes son the accounting issues the case was continued ten times. The trial of the accounting issues was commenced on April 12, 1945. With three separate continuances intervening the trial was concluded on August 23, 1945. On October 30 findings and conclusions as to all issues were filed and on November 1, 1945, judgment in respondent's favor was entered.

Two days after the denial of a motion for new trial on January 9, 1946, on the conventional grounds (Code Civil Proc. § 657) appellant orally moved the court for an order appointing a reporter and directing him to read and transcribe the stenographc notes of Reported Bagley who had deceased in July, 1944. Prior to action on such motion on January 25, 1946, appellant filed his notice of motion for a new trial on the ground of the reporter's death without having transcribed his notes, pursuant to Code Civil Procedure, section 953e. From the order denying a new trial on such ground comes this appeal.

In support of his motion appellant filed a number of affidavits which Omitting repetitions and redundant matter, are as follows:

Affidavits of Attorney Snyder et al.

Affidavit of Gordon M. Snyder: In November, 1944, attorney Eley, predecessor of affiant, in attempting to obtain a transcript of the first two days learned that the reporter had deceased on July 24, 1944; such testimony had not been transcribed and it was impossible to obtain a transcript; affiant was substituted as appellant's attorney August 13, 1945, instead of John Eley, Jr.; after denial of his motion for a new trial (under section 657, supra) he proceeded pursuant to section 953e; due diligence has been used by both counsel of appellant to locate and have Bagley's notes transcribed; by reason of appellant's induction into the army the matter was continued from time to time until August 23, 1945; basing his belief upon the opinion of Eley, affiant avers that the evidence presented on the first two days preponderated to show that no partnership existed and that Bagley's notes, if transcribed, would show that the court's finding of partnership was insufficient as a matter of law, and would show that ‘the court erred in excluding evidence relative to the intent and state of mind of the defendant at the time of entering into the agreement’ for the trucking ventures; on January 29, 1945, he requested Eley to prepare a bill of exceptions prior to the hearing on his motion for a nw trial under section 953e; pursuant to appointment both he and Eley conferred with respondent's counsel on two separate occasions in an attempt to prepare a statement of facts; on March 6 Eley declared that he was unable to prepare a bill of exceptions; the evidence on a new trial would be different from that introduced on the first two days, and the result would be different for the reason that the evidence introduced on the issue of partnership was insufficient as a matter of law to show the existence of a partnership; if such partnership did exist it terminated August 31, 1942, which date is significant in that it fixed the value of the trucks under plaintiff's exercise of option under Civil Code section 2436; the evidence was insufficient as a matter of law to prove any agreement between the parties for the purpose of engaging in the trucking business in the region of Las Vegas, nevada; on August 16, 1945, affiant moved the court to reopen the case so that the testimony reported by decedent could be reheard and a transcript made which motion was opposed by respondent and was denied.

Affidavits of V. W. Janney, assistant secretary of the superior court, Mrs. Bagley, the widow, Grace Farnell, Bagley's transcriber, and Ward McConnel, reporter for Judge Schmidt's department, establish the nonexistence of decedent's notes immediately prior to July 29, 1943.

Affidavit of Attorney Eley.

John Eley, Jr., avers that on discovering in November, 1944, that Mr. Bagley had deceased he communicated with decedent's transcribers and with his widow and learned that the notes of the first two days had never been transcribed; all of the evidence taken on the first two days was on the issue of partnership and such issue had been informally determined by the court on July 27, 1943, without making an interlocutory decree or findings upon such issue; such evidence preponderated to show that no partnership had existed; on January 30, 1946, affiant communicated with respondent's counsel in an attempt to prepare a bill of exceptions as to the proceedings on the first two days; Mr. Hutchinson stated that he would have available time in the following week commencing February 4, 1946; that he would gladly confer with affiant if any useful purpose could be served but that affiant should attempt to prepare a bill of exceptions; affiant was unable to do so for the reason that his notes and memory were not sufficient to recall the testimony given on the first two days; due to Hutchinson's illness affiant was unable to meet with him prior to February 7, 1946, when he offered to submit to Hutchinson a proposed bill of exceptions which did not purport to contain any of the testimony given but merely conclusions from which it was hoped that the testimony could be recalled; Hutchinson stated that he was detained by professional engagements and suggested that affiant send to him a copy of the proposed bill; whereupon affiant mailed a copy thereof to Hutchinson; although other attempts were made to see the latter he was not reached until February 26, 1946, when Hutchinson telephoned affiant; affiant then advised respondent's counsel that his own notes and memory were insufficient to prepare a statement of the facts and the testimony from which a bill of exceptions might be prepared; Hutchinson stated that if affiant desired he could go over his notes to see if the testimony could be recalled but that he would be unavailable prior to March 1, 1946,; on that date affiant and Snyder called at Hutchinson's office and for about two hours they attempted to arrive at a statement of facts and to agree upon the testimony of the first two days; after Hutchinson produced from his file the names of the five who had testified the attorneys attempted to recall the testimony of each witness but could not agree even on the order of their appearance; it became apparent that the notes of affiant and of Mr. Hutchinson were both insufficient to enable them to recall the testimony of such witnesses; Hutchinson referred to various papers in his file which he or the plaintiff had prepared prior to the trial; at questions concerning the contents of one of such papers Hutchinson became angry and said that it was an impossibility to remember, that his notes were necessarily sketchy but that all of the witnesses were still available and could be reached for their affidavits, and declared that the proposed appeal was most frivolous and ridiculous and that he was not going to spend any more time trying to reach an agreement on the testimony. During a second conference it became apparent that neither Hutchinson nor affiant had sufficient memory or notes to recall the testimony or to agree on a statement of facts; Hutchinson contended that the testimony of Rich and Elhard was conclusive in showing a partnership based on conversations with defendant; he stated that they were both available and that they and plaintiff could give their affidavits as to their testimony and that such affidavits would be better than his memory. Although Hutchinson attempted by telephonic conversations with his client to recall the non-transcribed testimony he and affiant were unable to agree on the major portion of it and neither was able to recall the testimony of the first two days solely from his notes and memory, but Hutchinson insisted that his statement prepared before the trial properly set forth the testimony given at the trial; such was rejected by Snyder and affiant; it is impossible to agree on the testimony given on the first two days in the absence of the notes of the deceased reporter. Affiant believes that a different judgment would be rendered if a new trial were granted in that the evidence before the court was legally insufficient to show that a partnership existed and that there was no evidence presented which would tend to prove a community of interest, since there was no evidence that (a) Fickett was to own an interest in the trucks, or (b) was empowered to make contracts, or (c) had power to manage the business, or (d) had a right to draw on the bank checking accounts, or (e) had made any capital contributions to the venture, or (f) had taken ownership of any of the assets in the name of the parties or that they had operated under a partnership name, or (g) that Fickett had ever received any of the proceeds of the venture as profits, or (h) had ever been entrusted with the execution of any agreement on behalf of the business, or (i) had ever offered to, or (k) had ever demanded that appellant share in the expenses, or (1) as survivor would have had a right superior to appellant's executor to continue the business. Even if there had been evidence sufficient to support an inference of a partnership there was no evidence tending to prove that such partnership terminated August 31, 1942, or that the agreement was for the purpose of buying and selling trucks or handling a trucking business in the region of Las Vegas, Nevada; it was the uncontradicted evidence that at the time the parties entered into the agreement neither knew about the Las Vegas job; the testimony of the first two days was the only evidence as to whether a partnership existed, and such evidence did not support the findings as to the existence, location, purpose or termination date of a partnership.

Affidavits of Attorney Hutchinson.

By the two affidavits of Attorney Hutchinson it was established that after Mr. Bagley's death appellant participated in approximately six trial sessions with much additional testimony without objection on account of his inability to obtain the transcript of the testimony taken on the first two days; respondent spent several hundred dollars continuing with the trial after the reporter's death; the delay from the conclusion of the trial reported by Mr. Bagley until his death was occasioned entirely by the delays of the defendant due to ten continuances at appellant's request on the ground that he had been inducted into military service, notwithstanding the fact that he had ample notice before induction in which to complete his evidence. After his induction he was able to get leave to come to Los Angeles for purposes other than the trial, at which time he could have completed the trial by deposition; there is no reason why an adequate record on appeal cannot be perfected without the reporter's transcript inasmuch as attorney Eley, affiant and the judge had notes pertaining to the trial; affiant has offered to meet with Eley to arrive at an agreement as to the factual contents of a bill of exceptions and is willing to cooperate. The evidence reported by Mr. Bagley offers no great controversial issue; it went solely to the question of whether there was a partnership; the evidence was overwhelming on that question; the Judge in his opinion from the bench said: ‘If I had nothing else before me but the testimony of the defendant himself, I would have to find that there was a partnership. He admits that there was such a setup.’ Appellant has taken advantage of every opportunity to frustrate this case. Following the delay of two years in the trial, the case was settled in open court on April 12, 1945, but thereafter defendant repudiated the settlement; he offers no showing of any controversial issue on a point of law for his appeal and there is no meritorious appeal on the pure issue of fact. Appellant offers no showing of any controversy over what the testimony was as reported by Mr. Bagley. Affiant's first communication received from Mr. Eley relative to preparing a bill of exceptions was on February 7, 1946 (about 15 months after Eley's discovery of Bagley's death), when Eley stated his wish for an immediate conference with affiant to discuss a bill of exceptions; while affiant was willing then as he is now to assist in the preparation of a bill of exceptions it was not incumbent upon himself to propose such document, but it should first be propsed by appellant; February 8, 1946, affiant received in the mail such a proposed bill from Mr. Eley consisting of two pages of statements of what the evidence did not show; neither did it remotely resemble the reasonable requirements of a bill of exceptions; such proposed bill was never in fact filed with the court. Affiant did not hear from Eley again until February 26 when he became so concerned over not having received such bill he telephoned Eley and urged him to prepare one, to which Eley replied that he preferred to have a conference first. March 1, 1946, affiant conferred with Messrs. Eley and Snyder for about four hours and read to them from rather extensive notes made at the trial of the case; on nearly everything stated by affiant Eley took issue; affiant offered to get affidavits from the witnesses as to what they had given in testimony but such offer was rejected; as a result of such meeting affiant has concluded that it never was their intention to prepare a bill of exceptions but that they really wished to demonstrate that a bill could not be prepared because of the death of the reporter. In fact, a bill of exceptions containing a fair statement of the evidence can be prepared if appellant really wishes to do it, by reason of the court's decision and of its notes and of the notes of affiant; appellant has never submitted a proposed bill of exceptions to which objections could be filed or in connection with which an engrossed bill of exceptions could made.

The Law Applicable.

Section 953e does not direct the trial court to grant a new trial but merely confers upon it the power to do so ‘when it shall be impossible to have the phonographic report of the trial transcribed * * * because of the death or other disability of a reporter.’ In reviewing an order made upon a motion pursuant to such section the following rules govern: (1) The determination rests in the wide, legal discretion of the trial court and where it does not appear that appellant could not have prepared a proper record on appeal by means of a bill of exceptions denial of the motion is not an abuse of discretion. Conlin v. Coyne, 19 Cal.App.2d 78, 82, 64 P.2d 1123; (2) The court's action will not be disturbed unless it is clearly shown that such discretion has been abused, i.e., that the court exceeded the bounds of reason in exacting a reasonably high degree of diligence on the part of appellant in procuring the preparation of a transcript. Caminetti v. Edward Brown & Sons, 23 Cal.2d 511, 514, 144 P.2d 570. Sharon v. Sharon, 75 Cal. 1, 48, 16 P. 345. (3) Respondent is entitled to every presumption in favor of the fairness, impartiality and regularity of the proceedings of the trial court, and abuse of its discretion must be made clearly to appear. (4) Respondent should not be too readily deprived of his judgment and the intendments in its support and be forced to reestablish his claim when, so far as appears, the evidence would be identical with that theretofore presented, notwithstanding appellant without his own fault had been deprived of a transcript of the proceedings below. (5) If the order may be sustained on any ground it must be affirmed. Moore v. Specialty Oil Tool Company, 128 Cal.App. 662, 665, 18 P.2d 82. (6) If a bill of exceptions can with the aid of the judge be prepared without a complete transcript of the evidence and proceedings the motion should be denied. Conlin v. Coyne, 19 Cal.App.2d 78, 83, 64 P.2d 1123; (7) Where appellant has not exercised that degree of diligence required to guard against the contingency of the reporter's death or inability to complete the transcript, it cannot be said that the court's discretion was abused in denying the motion. Caminetti v. Edward Brown & Sons, supra. (8) Section 953e does not confer absolute right to a new trial but each case must be decided on its own merits. Weisbecker v. Weisbecker, 71 Cal.App.2d 41, 49, 161 P.2d 990. (9) If there is a conflict in the affidavits supporting such motion with those opposing it, those of the prevailing party must be taken as true. Kettelle v. Kettelle, 110 Cal.App. 310, 313, 294 P. 453.

The Weisbecker Decision.

Notwithstanding the universal prevalence of the foregoing principles, appellant undertakes to defeat each of them by attempts to distinguish the facts of the cited cases and to show that the Weisbecker decision not only supports his contentions but that it alone sets forth the present state of the law by reason of the fact that it is the only expression of an appellate court since the amendments to the Rules by the Judicial Council in 1943. See Rules 4e and 7 of Rules on Appeal. Appellant argues that because the court there held (p. 47 of 71 Cal.App.2d, 161 P.2d 995) that a ‘failure to move for a settled statement should not be considered a penalizing circumstance in connection with appellant's motion for new trial’ under section 953e, one moving for a new trial under that section should not be required to attempt to prepare a settled statement in lieu of a transcript.

But the Weisbecker case is no parallel to the case at bar. The husband as plaintiff had obtained judgment for the divorce of a marriage of over 21 years' duration. Not only had she denied his allegations of cruelty but she had alleged his excessive use of intoxicants and his encouragement of her to use them but also his intimacy with another woman. Judgment based upon the finding in favor of the plaintiff without providing for the wife's support was followed by notice of appeal and notice to prepare transcripts on appeal under Code of Civil Procedure, 953e. Three days later, June 23, 1944, the court ordered plaintiff to pay charges for a reporter's transcript and this was paid. On October 30 defendant's attorney discovered that Reporter J. M. Phillipowski, who reported the trial, had died September 14, 1944. He averred in his supporting affidavit that after the transcript had been ordered the reporter telephoned that he had received the money for the estimated cost of the transcript and one copy and would commence the transcription as soon as possible; that other calls from Phillipowski followed, apologizing for his delays and his inability sooner to complete the transcript, that he would do so, and that no rights of defendant would suffer prejudice as he had secured the necessary extensions of time; that subsequently the reporter called upon affiant at his office to reassure him; that after some silence, by telephone he called for the reporter only to learn of his decease. The attorney alleged that there were 19 exhibits and three days of testimony which could not be reduced to an adequate record without a transcript; that there was undisputed documentary evidence contrary to the finding which would show that plaintiff had lived with another woman and that he had admitted that fact; that although plaintiff had testified that he had never used intoxicating liquors excessively he admitted writing an oath to drink no more and there was proof of his conviction of drunk driving in a public place; that certain apartment house records and the testimony of its manager indicated that plaintiff had lived there with another woman at about the time of filing his complaint. The diligence of Mrs. Weisbecker's attorney was further verified by a transcriber's affidavit to the effect that the extensions were agreeable to all the attorneys. In response to the argument that the husband was ‘shown to be at least as culpable as his mate and with the shocking consequence that she has no further legal claim upon him for support,’ the appellate court observed that the shock was intensified by the denial of her mother for a new trial.

Final Argument.

In the instant action appellant with his counsel was present at the first two days and heard the testimony; he neither exhibited surprise then at the proof nor in any way registered concern at the court's declaration of finding that a partnership existed as alleged by respondent, by asking leave to introduce additional proof, by presenting a bill of exceptions as a memorial of the court's error or by procuring a transcript of the proceedings. Every person is aware of the uncertainty of life and of the ephemeral nature of things material. By such uncertainties appellant should have been guided at a time when his own life was about to experience a radical change. Although the court set the cause for further trial on August 23 to afford the parties opportunity to settle the controversy, before that day had arrived appellant was inducted into the army without announcing such fact to the court or opposing counsel. If he had been convinced at that time that the court had made an erroneous finding as to the partnership, in the exercise of reasonable care of his own concerns he would have caused the testimony to be transcribed. He knew then that the subsequent installments of the trial would be devoted only to the ascertainment of the amount he owed respondent by virtue of the partnership which the court declared would be found to exist.

The cause having been stricken from the calendar upon appellant's promise that if he could obtain leave to visit California he would notify respondent and the court in order that the trial might be concluded, and appellant having violated that promise, it was restored to the calendar on October 19, 1944, when the trial was set for January 15, 1945. Continuances were thereafter granted on appellant's motion until April, 1945, when the first evidence was taken on the matter of the accounting. When the session began respondent's counsel offered to ‘put on any further evidence to refresh the court's memory, knowing the predicament we are in, Mr. Bagley having passed away, to show that this was a venture made for trucking on the Beebee Construction job at Las Vagas.’ Appellant's counsel did not accept such offer; neither did he join in the suggestion. By such inaction, if not by his prior neglects, he closed the door against further hearing on the issue of the partnership.

Futility of Announcing Legal Corollaries.

Appellant relies upon the affidavit of Attorney Eley which alleged (1) that affiant believed a different judgment would result from another trial and (2) that the evidence was insufficient as a matter of law to sustain the finding of a partnership because there was no proof of a community of interest between the parties. This is not followed by an attempt to state the testimony of the witnesses of the first two days but by an itemization of certain legal corollaries necessarily arising from an ideal contract of partnership. In the preparation of an affidavit of merits in support of a motion for a new trial under section 953e there should be averment of the testimony given contrary to the court's finding, and it must be shown that there was nothing of a substantial nature proved from which the finding could reasonably have been deirved.

Not a fact is averred in appellant's affidavit of merits as having been given in the testimony of the first two days to overcome the presumption of the regularity of the court's finding. Appellant's averment that ‘there was no showing of an intention to enter into a partnership and the court committed reversible error in excluding evidence offered by the defendant relative to his state of mind at the time of the agreement’ is as novel as it is insupportable. No rule, principle or doctrine is suggested whereby the undisclosed intention of a party to an agreement may be given in proof contrary to the actual words of the conversation or the writing whereby proof of the agreement was made. If the contents of the conversation of the witnesses who testified on the first two days were substantial evidence of an agreement it was thereby established, and undisclosed intentions would be incompetent for any purpose.

Inasmuch as appellant did not offer to the court immediately following the first two days and prior to his departure from the state a bill of exceptions containing the alleged errors; did not cause the testimony already taken to be transcribed; did not present a proposed bill of exceptions or proposed statement after giving notice of appeal; did not accept respondent's offer of the affidavits of his own witnesses as to their testimony given during the first two days as a means of aiding him to prepare a bill of exceptions or a settled statement to be used on appeal; did not set forth in his affidavits of merits the substance of testimony given on the issue of the partnership by either respondent or appellant, it cannot be held that the trial court abused its discretion in denying the motion for a new trial by reason of the death of the reporter and the impossibility of transcribing his notes of the proceedings.

The order denying motion for a new trial under Section 953e, Code of Civil Procedure, is affirmed.

I dissent. The granting or denial of a motion for a new trial pursuant to section 953e of the Code of Civil Procedure rests in the sound discretion of the court, and its ruling will not be disturbed save upon a showing of an abuse of discretion. In my opinion such a showing has been made. The shorthand reporter is dead and his notes have been lost. It is not the fault of appellant that he is unable to provide us with a record of the trial. The refusal of the court to grant a new trial in this action is virtually a denial of his right of appeal—one of the processes provided by law for the determination of the rights of persons who have become involved in litigation.

At the conclusion of a two days' trial the court orally declared that a partnership had existed between appellant and respondent, and continued the case for an accounting. The judgment subsequently entered adjudged that the parties had been partners and directed the payment by appellant to respondent of an amount found by the court to be due him by reason of the partnership business. Appellant contends that the evidence is insufficient to sustain the finding that they were partners, a fact that he has at all times disputed. That finding furnished the foundation of the judgment. In the absence of a transcript of the proceedings had in the trial court we obviously cannot pass upon the sufficiency of the evidence. The result is in contravention of a right guaranteed by law, since appellant cannot present the vital point upon which his appeal rests.

The case came to trial on July 26 and 27, 1943, at which time the court made the oral declaration above mentioned and recited at length in the majority opinion. That statement represented the trial judge's conception of the effect of the evidence and of the proper conclusion to be deduced therefrom, but it does not have the force of finality. The sufficiency of the evidence is a matter for this court to pass upon if and when we are afforded an opportunity to read it. Since the correctness of the court's statement has been brought into question by appellant it can be reviewed only upon an examination of a transcript of the entire record of the trial, which has been made impossible. This court cannot resort to speculation or conjecture concerning what the witnesses said or the inferences to be drawn from the evidence. I am unwilling to ‘guess' a party out of court.

Shortly after the continuance of the trial above mentioned appellant was inducted into the armed forces of the United States. We cannot assume and there is nothing in the record from which it can be inferred that his entry into the service was procured by him for the purpose of avoiding or postponing further hearing. Thereafter the trial of the case was continued several times, ten, says the majority opinion, by reason of his absence in the service. The continuances were not granted as a matter of grace but as a right afforded him under the provisions of the Soldiers' and Sailors Relief Act. 50 U.S.C.A.Appendix, § 521.

The reporter died on July 24, 1944, but appellant's attorney did not learn of the death until November of that year. During the time intervening between the first two days of the trial in July, 1943, and the death of the reporter there was no reason for procuring a transcript. The introduction of evidence had not been completed and since the court might have reopened the case at the subsequent hearing for the taking of further evidence on the question of partnership, such additional evidence might have been sufficient to lead the trial judge to the conclusion that no partnership existed. In that event appellant would not have needed a transcript. The span of life is uncertain, but it cannot be anticipated that in every case that is tried piecemeal the reporter will pass into the beyond before the date upon which the trial can be resumed or before a transcript can be obtained in the ordinary course of litigation. Nor can it be foreseen that the reporter's notes will be lost, as in this case, before the next session of the court. Death may overtake the reporter over night, or his notes may be destroyed by fire. If the majority opinion is to prevail it behooves every litigant to procure a daily transcript of the trial lest he be denied the right to present to an appellate court such questions as he deems necessary and pertinent to the preservation of his property rights.

The efforts made by appellant's counsel to obtain a transcript, and, upon ascertaining the loss of the reporter's notes, to agree with respondent's attorney upon a bill of exceptions, are related, albeit critically of appellant, in the majority opinion. Counsel for respondent states in his sffidavit that he and the attorney for appellant and the judge each had notes of the trial. Nevertheless they were never able to agree on the evidence and nothing was accomplished toward preparing a record for the appeal, either by bill of exceptions, statement of the case, or otherwise.

Counsel for the respective parties agree that their notes taken at the trial were ‘sketchy’ and that they were unable to remember the evidence. Respondent's attorney offered to obtain affidavits from the witnesses stating what their evidence had been. Manifestly this would have been an unheard of and an extremely unsatisfactory manner of making a record on appeal even if such affidavits could have been obtained. That such method was not feasible is indicated by the fact that during a conference between counsel respondent was called on the telephone by his attorney and they were unable to agree on some of the important phases of the testimony. In any event the memories of the witnesses were probably no better than those of the attorneys. They may have been biased or prejudiced toward one side or the other. The effect of cross-examination would have been lost.

There was no reason or necessity, as indicated in the majority opinion, for the preparation of a proposed bill of exceptions or of a statement prior to appellant's entry into the service, or for the transcription of the testimony already taken. Since the case had not progressed to the point where a motion for a new trial could be made and since there was no order or decree from which an appeal could be taken, there was no occasion for a bill of exceptions or a statement of the case. Appellant has been unable to present a bill of exceptions or a statement since the date of his appeal because he had no transcript and the parties never agreed as to the evidence.

This case does not have a parallel in any of the cases involving the right to a new trial pursuant to section 953e of the Code of Civil Procedure. Each of the cases relied on by respondent presents a situation entirely different from that now under consideration. In Conlin v. Coyne, 19 Cal.App.2d 78, 64 P.2d 1123, part of the record had been transcribed prior to the death of the court reporter, and there was no showing as to what portion of the total record it represented, nor as to the issues to which the missing portions related. In Kroeker v. Jack, 51 Cal.App.2d 272, 124 P.2d 619, no errors were asserted to have occurred at the trial and there was no statement in the affidavits that there was any likelihood that the court would arrive at a different conclusion on a retrial. In Smith v. Orange Belt Supply Co., 58 Cal.App.2d 848, 137 P.2d 845, a part of the transcript had been completed and the court said that the portion which had been transcribed might have supported the judgment, in which event the untranscribed evidence could only raise a conflict. In Caminetti v. Edward Brown & Sons, 23 Cal.2d 511, 144 P.2d 570, there was no evidence that the disability of the reporter prevented the preparation of a transcript between the date of the appeal and the time when illness overtook him that resulted in his death. During that time he was engaged in reporting the trial of another case and his transcriber procured orders from various judges extending time for the preparation of the transcript, all of which were in violation of the law in that the orders were not based on affidavits stating reasons for the delay and no notices of the extension orders were given to counsel. Appellant's attorney was on notice that the orders were in violation of section 953a of the Code of Civil Procedure (as then in force but repealed in 1945) and he took no steps to compel the reporter to transcribe his notes. Further, there was no showing as to the nature of the evidence and no indication that there was any merit in the appeal. Contrasting the instant case with those above cited, no part of the record here had been transcribed by the deceased reporter; the affidavits point out the issues to which the missing evidence related; appellant's affidavits set forth the error upon which he rests, to wit, the insufficiency of the evidence; appellant asserts that if there should be a retrial a different judgment would result; the failure to obtain a transcript was not due to other engagements of the reporter after the transcript was ordered but was because of his death before the necessity for a transcript arose; there is a positive showing as to the nature of the evidence, and that there is merit in the appeal; a bill of exceptions cannot be prepared either by agreement of counsel alone or with the aid of the court.

The case of Weisbecker v. Weisbecker, 71 Cal.App.2d 41, 161 P.2d 990, does not appear to have been decided on the ground of ‘hardship,’ as argued by respondent. The facts are related in the majority opinion. In deciding the question in issue it was treated as an ordinary case, the necessities of the wife not being stated as a reason for the reversal. The court there said that the appellant's attorney acted in a manner reasonably to be expected under the circumstances; the appeal was initiated in the customary and timely manner; conversations were had with the reporter concerning his progress in preparing the transcript, and the attorney was not advised that any of his client's rights were being prejudiced. In such circumstances the court held that the conditions described in section 953e of the Code of Civil Procedure were present and that in the circumstances there existing a denial of a new trial pursuant to that section was unreasonable. I see no justification for attempting to distinguish the present proceeding from the Weisbecker case, except that it was a divorce action and in the instant case appellant is required to pay out money which he asserts is not warranted by the evidence. In each case the refusal of the court to grant a new trial was a defeat of justice.

Upon the denial of appellant's motion for a new trial he moved to reopen the case for the purpose of re-examination of the witnesses that had previously testified. This motion was denied, thus completely depriving him of any opportunity to provide a record upon which this court can determine the issues. The oral statement by the trial judge that upon appellant's testimony alone he would find that there was a partnership represented his conclusion. Like any other ruling or finding of a trial court it is not final but is subject to review on appeal. Appellate courts are constantly required to determine the sufficiency of the evidence to support findings and they do not always agree with the trial court. Whether we would do so in this case cannot be decided without the record.

The denial of the motion for a new trial, coupled with the refusal of the court to reopen the case, was an abuse of judicial discretion. The order should be reversed.

FOOTNOTES

FOOTNOTE.  The Court: If I had nothing else before me but the testimony of the defendant himself I would have to find that there was a partnership. He admits that there was such a set-up. There is not any question that so far as their action to one another is concerned it is not as clear as it might have been. That is nothing new in my experience, both as a lawyer and sitting on the bench—there is not any question that there was a partnership. The Court has to imply from the conversations as to the extent of that partnership. It was a try-out in this particular work over there at Las Vegas. One man was to furnish his experience and the other man to provide the capital. Nothing was said as to whether there should be a contribution to the partnership by the one man with the experience of the other man against that. From their actions I would have to think that the partnership was not of that full type. And in order to settle this partnership, an account would have to be had for the amount of money that was put in by Mr. Rauch, the amount of money that he received from the contract, the amount of repairs, the expenses of drivers, all the expenses of the job, of course, and then a sale of the trucks thereafter, or their value if that can be reached, deducting therefrom the amount that Mr. Rauch pu intot he trucks. If there is any balance over—I am just giving you the highlights—that would depend on the items or profit as to whether they should or should not be allowed. The if there is any profit thereafter, that should be settled 50–50, deducting therefrom whatever money was paid to plaintiff in connection with these checks—the salary checks. That is as near as I can come to it from this evidence.Now, I will continue the matter until you folks get an opportunity to go over the books, without the necessity of appointing a referee, because that will cost a lot of money, and from the statements made here it would not be profitable. How much time do you need? No decree will be made at this time. I will continue the matter for a week or two weeks to see if you can get together on the suggestions I have made, and in view of my suggestions whether any offer of compromise can be, if you can settle with each other without the expense of litigation. It is one of those unfortunate cases that things didn't pan out as brightly as they looked at the beginning. If you do not get together, what I propose to do is to appoint a referee to take the testimony. There is not any sense in doing that. The easiest way is to go over the accounts and settle it. That is the way the Court has to do or the receiver. * * * I can continue it 30 days. * * * Continued to August 23rd.

MOORE, Presiding Justice.

McCOMB, J., concurs.

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