Aker v. Aker

• Decision Date: 25 January 1932
• Docket Number: 5825
• Citation: 51 Idaho 555,8 P.2d 777
• Parties: DORA M. AKER, Respondent, v. LESLIE J. AKER, Respondent, and CARRIE B. AKER, Appellant
• Court: Idaho Supreme Court

8 P.2d 777

51 Idaho 555

DORA M. AKER, Respondent, v. LESLIE J. AKER, Respondent, and CARRIE B. AKER, Appellant

No. 5825

Supreme Court of Idaho

January 25, 1932

APPEAL AND ERROR-SETTLEMENT OF TRANSCRIPT-APPEALABLE ORDER.

1. Order requiring additional testimony included in reporter's transcript presented for settlement held "special order made after judgment," which was appealable (C. S., sec. 7152).

2. Order refusing to settle transcript held "special order made judgment," which was appealable (C. S., sec. 7152).

3. Where court required additional testimony to be included in reporter's transcript, orders refusing to settle transcript were appealable, and mandamus was not the remedy (C. S., sec. 7255).

4. Mandamus does not lie to coerce or control discretion of district court.

5. District court was vested with discretion regarding whether be should certify reporter's transcript, and such discretion could not be controlled by mandamus.

6. One seeking writ of mandate must have clear legal right to have act done, and it must be clear duty of court to act.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Motion to dismiss an appeal. Denied.

Motion to dismiss an appeal denied.

Oppenheim & Lampert and Ira E. Barber, for Appellant.

Delana & Delana and C. S. Hunter, for Respondents.

LEEPER J. Lee, C. J., and Budge, Givens and Varian, JJ., concur.

OPINION

LEEPER, J.

The matter immediately before us is a motion to dismiss an appeal from two orders of the district court of Ada county, one dated August 17, 1931, requiring additional testimony to be included in the reporter's transcript presented for settlement by the appellant, and one dated September 4, 1931 refusing to settle the transcript. An appeal is also pending from the judgment and an order denying new trial, which need not be considered in this inquiry. Briefly the facts out of which this appeal arose are as follows: The original action was filed by Dora M. Aker against Leslie Aker for divorce, in which the appellant, Carrie B. Aker, was joined as a defendant in the capacity of a fraudulent grantee of community property. Upon issues properly framed by pleadings the case went to trial, and by agreement of the parties the divorce action was tried separately from the action for the recovery of the property from the appellant. Thereafter on August 26, 1930, one decree was entered, covering all matters involved in the entire suit, from which Carrie B. Aker appealed by filing notice on November 24, 1930. A praecipe was filed December 4, 1930, and an order for a reporter's transcript was entered on the same date. This order provides, among other things, as follows:

"That J. A. Weaver, who was at the trial of said cause the official court reporter of this court, be, and he hereby is, directed and required to prepare a transcript of the testimony and proceedings of this court in connection with the separate trial of the issues involving the property of said Carrie B. Aker." (Folio 237.)

Thereafter, extensions of time were granted from time to time by the court, and the transcript was finally prepared and lodged by the reporter on June 4, 1931. The transcript was served upon attorneys for the respondent and in due season they filed written designations of error in the transcript, all of which were conceded by the appellant except one, a consideration of which brings us to the center of this controversy. The transcript which was presented for settlement implicitly followed the order and covered only the testimony received in that portion of the action pertaining to the property of this appellant. The objection designated was that the transcript did not contain all of the material and relevant evidence submitted to and used by the court in arriving at his findings of fact, and upon which his conclusions of law and judgment were based, the reference being particularly to evidence of witnesses introduced upon the divorce phase of the action. Upon a hearing for a settlement of the transcript before Judge Winstead, who had succeeded Judge Brinck, the trial judge, the respondent was required to specify the names of the witnesses whose testimony was required and on the twelfth day of August, 1931, such list was submitted containing the names of thirty witnesses. On August 17th the court entered an order directing the inclusion of all of the evidence of these thirty witnesses in the transcript, after hearing and in the exercise of his discretion. (Folios 1436-1439.) On September 4th the attorneys for the appellant filed a written refusal to comply with this order, setting forth as a reason the impecunious condition of the appellant and the excessive cost of such a transcript. (Folios 1444, 1445.) On the same date the court made and entered an order refusing and declining to settle the reporter's transcript theretofore lodged. On October 16, 1931, notice of appeal from both orders was served and filed, and thereafter proceedings on appeal were pursued, the regularity of which is not questioned by the respondents. The motion to dismiss is made upon two grounds: (1) That the orders appealed from are not appealable. (2) That mandamus is the exclusive remedy.

It appears that appellant heretofore made an original application to this court to settle the transcript (Aker v. Aker, decided October 8, 1931, and reported ante, p. 126, 4 P.2d 359), which was denied. Respondent contends that the decision therein announced is controlling here. This contention cannot be sustained, as our decision in that proceeding only went to the extent of holding that this court had no original power to settle a transcript as a whole, but that C. S., sec. 6884, conferred upon it only the power to allow an exception when the lower court so refused to do. As we view it, this...