TOENNIGES v. Forrest Griffeth and Eva E. Griffeth, Appellants.

Reset A A Font size: Print

District Court of Appeal, Second District, Division 1, California.

Paul S. TOENNIGES and Ruth A. Toenniges, Husband and Wife, Plaintiffs and Respondents, v. Forrest GRIFFITH and Mrs. Forrest Griffith, Husband and Wife; Crawford Bryant and Mrs. Crawford Bryant, Husband and Wife; et al., Defendants, Forrest Griffeth and Eva E. Griffeth, Appellants.

Civ. 23396.

Decided: May 18, 1959

Henry C. Rohr, Los Angeles, for appellants. Paul Major, Van Nuys, for respondents.

Counsel for appellants has filed a petition for a rehearing and has filed therewith a motion to augment the record.

With reference to the motion to augment the record, it is urged that ‘[i]t was in the contemplation of both the appellant and respondent that the reporter's transcript was part of the record before this that the attorneys who represented the appellants that the attorneys who represente the appellants in the trial court filed the notice of appeal and the notice to prepare the clerk's transcript; that the present counsel, who was substituted into the case to represent the appellants on the appeal, did not check or read the notice of appeal and request for record, and first learned that the reporter's transcript was not before this Court and that the appeal in effect was one on the judgment roll when he read the opinion of this Court.

Appellants correctly recognize ‘that they are not entitled as a matter of right to the granting of * * * motion to augment the record.’ In Russi v. Bank of America, 69 Cal.App.2d 100, at page 102, 158 P.2d 252, 253, in referring to Rule 12 of Rules on Appeal, it was said: ‘Its meaning and purpose are clear. Parties are encouraged to bring up only relevant matters on appeal and occasionally it will develop that there has been omitted from the record some paper, exhibit or portion of the oral proceedings. In such case it is desirable and proper upon a showing that the omitted material was relevant and that its omission was excusable, to bring it up in order that the appeal might be determined on an adequate record. But as has been correctly said: ‘Even where the matter sought to be added is proper, or the proposed correction is warranted, neither augmentation nor correction is a matter of right; they both may be denied for inexcusable neglect in preparing the record, for delay in presenting the application, or for other reasons. The new rule does not deal expressly with this aspect of the question and the discretion of the court to deny the application still remains. Hence the augmentation procedure is not to be regarded as a cure-all, nor as an assurance that negligent preparation of the record will entail no harmful results.’ See 17 So.Cal.L.Rev. 130. There is nothing in rule 12 which can justify the appellant's contention that he may at his pleasure change his judgment roll form of appeal to one which includes a reporter's transcript.

‘Nor is Rule 5(f) of any assistance to appellant. That rule provides that when the appellant elects to appeal on the judgment roll alone the respondent may not require the inclusion of oral proceedings except when necessary to prevent a miscarriage of justice. That section protects the respondent against any unfairness in the appellant's limitation of the form of record.’

This case was set for oral argument before this Court for March 24, 1959. On March 19, 1959, the clerk of the court received from counsel a written stipulation which in effect set forth that the case would be submitted without argument or any further presentation. The Court then directed the clerk to communicate with, and inform counsel in effect that the court desired to have counsel present for the oral argument, even though the stipulation had been filed to the effect that the cause would be submitted without argument. The members of the Court had in mind to discuss with counsel for both sides, in open court, the status of the record before the Court and other matters having to do with the law and the facts of the case. Counsel for appellants replied that it was his custom to go to the desert at that particular season of the year, and that therefore he would not be present at the oral proceedings. The Court thereafter disposed of the case on the record which was lodged before it.

Counsel for appellants now indicates that he should be given some relief because of his failure to have the reporter's transcript before us. It is clear that one of the reasons for the absence of the complete record, if such was desired in the first instance, was counsel's failure to ascertain the state of the record when he took over from the attorneys who tried the case in the trial court. Such a state of facts does not appear to us to constitute excusable neglect, or good cause to grant the motion.

With reference to the grounds for a rehearing, counsel states in effect that an injustice would be done to the appellants if the rehearing be not granted.

We are convinced, from a reading of the entire record before us, which includes copious references to the reporter's transcript that the trial court properly determined the cause, and the judgment was properly affirmed.

The petition for a rehearing is denied and the motion to augment the record is denied.