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Kessler v. Young

86 Cal. App. 657 Court Second Appellate District, Division Two. Decision date 1927-11-10 Docket Civ. No. 4495 English

Delivered by CRAIG, Acting P. J.

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p. 657
[Civ. No. 4495.
Second Appellate District, Division Two.
November 10, 1927.]
MAE H. KESSLER, Respondent, v. MARIE J. YOUNG, Appellant.
Charles Lantz, W. P. Huatt and F. C. Huber for Appellant.
Samuel R. Blake for Respondent.

This is an appeal from an order denying the defendant’s motion to retax costs after appeal from the judgment upon the merits, which was rendered in favor of the plaintiff. It is admitted that appellant had a private stenographer take notes of the evidence, and that

p. 658
a motion for new trial and proposed bill of exceptions were based upon that stenographer’s report; that the official phonographic reporter also was present and made a record of the evidence, and the plaintiff and respondent requested and obtained an order for the official transcript, which was used in preparing proposed amendments to the bill of exceptions proposed by appellant. Respondent paid the official reporter, and the amount of such charge was taxed as part of the costs. Appellant moved the trial court to strike out the reporter’s fees, upon the ground that a stenographer had already prepared a transcript and that the official one was therefore unnecessary.

It is provided by section 269 of the Code of Civil Procedure that the court may appoint a competent phonographic reporter, who, at the request of either party, must take down in shorthand all of the testimony, objections, and rulings, and that, if so ordered by the court, he must write out the same. There is no provision authorizing the employment of another person for the performance of such services. Section 274 of the Code of Civil Procedure provides that the fees of the official reporter shall be taxed as costs and paid by the unsuccessful party, and the supreme court has held that the allowance of the reporter’s fees for transcription, when order therefor is made by the court, is proper, and that a motion to strike out such item should be denied. (Barkly v. Copeland, 86 Cal. 493 [ 25 Pac. 3 ]; Bell v. Pleasant, 145 Cal. 410 [ 104 Am. St. Rep. 61 , 78 Pac. 957 ].)

The order appealed from is affirmed.

Thompson, J., and Peairs, J., pro tern., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 9, 1928.

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