
    [S. F. No. 10960.
    In Bank.
    January 9, 1924.]
    CHARLES J. LUCKEHE, Petitioner, v. K. S. MAHON, etc., Respondent.
    
       Appeal—Delay in Certifying Transcript—Motion to Dismiss —Discretion.—In a proceeding to compel a trial judge to certify to a reporter’s transcript of the trial prepared under the provisions of section 953a et seq. of the Code of Civil Procedure, it cannot be said that it was an abuse of discretion of the trial court to refuse to certify the transcript, where there was evidence which justified the trial court in believing that the reporter furnished the transcript to the attorney for petitioner upon the promise or expectation that the attorney would file the transcript with the clerk, but nothing being done in connection with the certification of the record until after a motion to dismiss was made.
    
       Mandamus—Certification of Reporter’s Transcript—Rehearing—Evidence.—Upon a petition for rehearing in the supreme court in a proceeding of mandartms to compel a judge of the superior court to certify a reporter’s transcript, a letter from the reporter, discovered after the decision of the supreme court, stating he had filed the transcript at a certain date, and his affidavit stating he had forgotten he had so written, cannot be considered, but should be presented to the superior court for appropriate action. (On denial of rehearing.)
    APPLICATION for a Writ of Mandate to require certification of transcript of trial.
    Writ denied.
    The facts are stated in the opinion of the court.
    Clinton W. Johnson for Petitioner.
    A. H. Hewitt for Respondent.
   THE COURT.

Petition denied.

Rehearing denied.

In denying a rehearing, the court filed the following opinion on February 6, 1924:

THE COURT.

The petitioner bases his application for a rehearing upon the ground that since our decision he has' discovered a letter from the court reporter, the original of which he files with his petition, in which the reporter states under date of May 22, 1923, that he has filed the transcript in Luckehe v. Reclamation Dist., and supplements this letter with an affidavit of the court reporter that he had forgotten that he had so written. The letter and affidavit cannot be considered by us, for the reason that the petition here is necessarily based upon the proposition that the trial court improperly refused to certify the transcript under the facts as presented to him. The evidence now presented to us should be presented to the respondent for whatever action may be appropriate.

Petition denied.  