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District Court of Appeal, Third District, California.


Civ. 6399.

Decided: April 17, 1941

C. P. Von Herzen, Astor Elmassian, George C. Woods, and Paul Vallée, all of Los Angeles, for appellant. Reynolds & Painter and Sidney A. Cherniss, all of Los Angeles, for respondents.

The respondents have moved this court for diminution of the record, under rule XIV of Rules for the Supreme Court and District Courts of Appeal of California, by adding thereto the reporter's transcript of testimony taken at the trial. The motion is supported by affidavits of the attorneys for the respective parties. The plaintiff appealed from an order of the trial court setting aside a judgment previously rendered in his favor and entering in lieu thereof a judgment in favor of the defendants on the ground that the court was without jurisdiction to do so.

The appeal was presented to this court on a settled bill of exceptions which does not contain all of the evidence adduced at the trial. The cause was fully briefed, orally argued and submitted to this court for decision on March 10, 1941. The petition for diminution of the record was not filed until March 26th of this year. The motion comes too late to be granted. Rule XV of Rules for the Supreme Court and District Courts of Appeal provides that: “Exceptions or objections to the transcript * * * must be taken and notified to the appellant in writing at least five days before the hearing, or they will not be regarded.”

To grant a motion for diminution of a record after a cause has been submitted to a reviewing court for determination would open the doors for endless litigation. The preceding rule is reasonable and necessary to the orderly disposition of appeals.

The motion is, therefore, denied.


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