On December 21, 1933, this court rendered an opinion in this cause, on petition of Thelma Wright, holding that the said R. D. Algee and A. W. Brazelton were pro hac vice court reporters; that as such reporters they caused to be taken down in shorthand the testimony in the case of Wright v. Wright pending before the respondent jndge; that the said Thelma Wright, in order to perfect her appeal to this court in said cause, was entitled to the transcription into typewriting of the testimony so taken in shorthand, and to have the same duly filed in this court; that the said Algee and Brazelton were, in said cause, officers of the court and subject to the orders of said court in said cause; and that the respondent judge was in error in quashing the order made by him discharging the said Algee and Brazelton, and in relieving them from the duty of transcribing the testimony, and filing the same in court.
The order made by us was in the following words: "Let peremptory mandamus issue as above directed unless, on being advised of our conclusion as herein expressed, the respondent judge shall make the orders in conformity to this opinion, and shall enforce compliance therewith by said Algee and Brazelton."
The withholding of the peremptory writ was not for the purpose, as supposed by the respondent judge, to allow him to have further hearing in the cause to determine for himself whether he could comply with the positive order of this court, but rather, and *Page 44 only, that he might voluntarily comply, without being otherwise forced thereto by this court.
The order requiring the respondent judge to proceed in conformity to our opinion in the premises was made on December 21, 1933, and petition for rehearing was overruled on January 18, 1934.
It appears from the petition now before us that the respondent judge has not in fact complied with our former order, which was positive and mandatory in its terms, although four months have elapsed since the rehearing was overruled in the cause. The order made by us for the transcription of testimony and the filing of the same left the respondent judge with no discretion in the matter, nor for a hearing before him as to whether he would, or would not, comply with our directions. The petition now before us must be regarded as information to this court that the respondent judge has declined to comply with our order, and asking that peremptory writ issue, as we directed it should issue, unless the respondent judge should voluntarily make the order required by us.
The petition and answer of the respondent make a plain case requiring that peremptory writ of mandamus issue to the respondent judge in accordance with the opinion and order of this court made and entered on December 21, 1933.
Let peremptory mandamus issue.
ANDERSON, C. J., and THOMAS, BOULDIN, BROWN, and KNIGHT, JJ., concur.
GARDNER and FOSTER, JJ., dissent.