LAKEVIEW CREAMERY CO v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY (1937)

This is a petition for a writ of mandate to compel the respondent superior court, and, in particular Judge Schmidt, to settle a reporter's transcript on appeal. On August 26, 1936, we issued an order to show cause directed to respondents.

Creditors of Lakeview Creamery Company, one of petitioners herein, brought a proceeding to have the company adjudged bankrupt, and a receiver was appointed to conduct the business. In October, 1932, Hugh J. Boyle, acting for Palo Verde Creamery, Inc., offered to purchase certain assets of Lakeview Creamery Company, under an installment contract. This offer was accepted, and the United States District Court appointed petitioner Sylvan Y. Allen, then attorney for Lakeview Creamery, trustee to receive the purchase price for the benefit of the creditors. A bill of sale was given and some payments were made. Thereafter Boyle and Palo Verde Creamery, Inc., brought suit in the superior court of Los Angeles county against Lakeview Creamery Company and its trustee, for damages for alleged misrepresentations in connection with the contract of sale, and recovered a substantial judgment on August 12, 1935. Petitioners (defendants in the main action (gave notice of appeal, and the reporter prepared the transcript, but when the same was ready for settlement, Judge Burroughs, who had tried the case, had died. The clerk's office notified counsel that the transcript would be presented to Judge Schmidt in department 33 of said superior court, for settlement. The successful plaintiffs in the above action objected to the settlement of the transcript, and their objections were sustained by Judge Schmidt on April 23, 1936.

Thereupon petitioners brought two proceedings for the purpose of settling the transcript. The first was an application filed in this court in the main action, Boyle v. Lakeview Creamery Co., 64 P.(2d) 943, for an order to show cause why the transcript should not be settled by this court. This application is today decided by us in a separate opinion. The second was the present proceeding, which seeks by mandate to compel Judge Schmidt to settle the transcript in the main action, as well as the transcript of the lower court proceedings on settlement, which took place before Judge Schmidt on April 23, 1936. Two other motions were made in the main action by the successful plaintiffs, one to strike the clerk's transcript and reporter's transcript from the files, and the other to dismiss the appeal. These last two motions are also decided in the above mentioned separate opinion.

In the present proceeding, respondents have raised a number of objections to the petition, by demurrer and answer, none of which is in our opinion sufficient.

It is first contended that petitioners (appellants in the main action) have no capacity to take the appeal because in 1934 the corporate powers, rights, and privileges of Lakeview Creamery Company were suspended for failure to pay its franchise taxes. Because of the peculiar circumstances of this case, we do not deem it necessary at this time to determine whether section 32 of the California Bank and Corporation Franchise Tax Act (Deering's General Laws, 1931, Act 8488) deprives the suspended corporation of the right to defend or appeal. The petitioning corporation was under the jurisdiction of the federal court, was not engaged in any business, but on the contrary was being liquidated for the benefit of creditors, under the direction of a trustee appointed by that court. It was without power to act as a going concern. The present controversy, moreover, arose out of a contract for the transfer of property, in which transaction the corporation was represented by the trustee; and in the main action, the trustee is necessarily a proper party defendant, as the representative of the corporation. Accordingly, it is immaterial whether the corporation has capacity to appeal or not, for the representative, duly appointed and acting under the authority of the federal court, has legal capacity to bring the appeal.

It is also suggested that the petitioner Allen is not beneficially interested in the suit and for this reason lacks legal capacity to apply for mandamus; but said petitioner is a trustee for the benefit of the creditors of the company, and in his representative capacity is obviously authorized to seek mandamus, as well as to appeal. See 2 Cal.Jur. 219.

Another objection was that the transcript was not filed in time. It appears that the transcript was in three large volumes, totaling 1,081 pages, and could not have been completed within the twenty-day period provided by section 953a of the Code of Civil Procedure (as amended by St.1935, p. 1960). In these situations the reporter customarily secures an extension of time, but seems inadvertently to have failed to do so in the instant case. However, failure in this respect is not shown to have damaged the adverse party, and it has been held that the time provision is merely directory, and its violation not attended with any particular penalty. See Smith v. Jaccard, 20 Cal.App. 280, 128 P. 1023, 1026. Hence it should not be held that the delay incident to preparing the transcript should deprive petitioners of their right to appeal.

The only other question which requires consideration is whether Judge Schmidt, respondent herein, is the proper party to settle the transcript. Section 652 of the Code of Civil Procedure (as amended by St.1933, p. 1880) permits settlement of a transcript in the Supreme Court of District Court of Appeal, where the superior judge who tried the case refuses to certify the same. In the instant case, there was no such refusal, the trial judge having died. Our rule XXVII (see 213 Cal. 1vi), provides that when the trial judges dies, his successor in office may certify the transcript. The difficulty in the instant case, however, is that Judge Burroughs of the superior court of Lassen county sat by assignment of the chairman of the judicial council, in Los Angeles county, and Judge Burroughs' successor in office, who is neither a Los Angeles judge nor familiar with the case, is hardly the appropriate judge to handle the matter. It may be observed, in this connection, that the above-mentioned rule, in cases of disqualification or absence of a judge from the state, permits settlement ‘by a judge of the same or an adjoining county.’ The implication of this provision, and the common sense rule, would seem to be that where the judge who tried the case is not available to settle the transcript, the proper judge to do so would be a judge of the same county, where it is possible to find one. Accordingly, it seems entirely proper that Judge Schmidt, as a judge of the superior court in and for the county of Los Angeles, having been assigned the matter and having heard the objections to the settlement of the transcript, should determine its sufficiency.

Let a peremptory writ of mandate issue directing respondent, Hon. Ruben S. Schmidt, judge of the superior court of Los Angeles county, to settle and approve as settled the said reporter's transcript in the case of Hugh J. Boyle and Palo Verde Creamery, Inc., v. Lakeview Creamery Company, a Corporation, and Sylvan Y. Allen, as Trustee (Cal.Sup.) 64 P.(2d) 943.

It is unnecessary, in view of the above decision, to have approved the transcript of proceedings before said judge on April 23, 1936, and therefore that part of the application before us which seeks such action is denied.

PER CURIAM.