LOEWENBERG v. SCHNEIDER (1939)

The respondents have presented two motions: (1) A motion for diminution of record, and (2) a motion to strike a purported bill of exceptions from the record.

Plaintiff and appellant, desiring to perfect a record on appeal, notified the clerk of the Los Angeles superior court on July 15, 1937, to prepare a clerk's transcript under section 953a of the Code of Civil Procedure. That transcript was filed in this court on July 30, 1937. Meanwhile appellant had also initiated proceedings to obtain a bill of exceptions. A purported bill was settled on December 2, 1937, and was filed in this court on December 8th. It consists of six typewritten pages, and a clerk's certificate which recites that at the time the motion for settlement came on for hearing, appellant was represented by counsel, but respondents were not.

Respondents now move to strike this purported bill of exceptions from the record on the ground that the entire proceedings leading to its settlement were defective and void. They charge, among other things, that no proposed bill was filed, that they were not given due notice of the hearing of motion for order of settlement, that the purported bill does not set forth fairly or accurately the testimony adduced on the trial of the cause, and that they had no opportunity to file written, or any, objections to the purported bill as engrossed. They also move for diminution of the record on appeal herein by adding a certified copy of an order made by the trial court on February 14, 1938, granting a motion theretofore made by them to set aside the order settling the bill of exceptions, and striking the bill from the record, together with a transcript of the proceedings which resulted in the entry of the order.

Appellant opposes both motions, urging that the trial court was without authority to set aside the order of settlement and to strike the bill of exceptions from the record, and also that the certification of the bill cured all omissions in procedure.

No good reason appears why a transcript of all proceedings had in the court below with respect to settlement of the bill should not be brought up and made a part of the present record. This data will show whether or not the trial court exceeded its authority in making the alleged order, and it will also enable this court to determine whether the bill of exceptions should be stricken from the record.

The motion for diminution of record is granted. The motion to strike the bill of exceptions is denied, without prejudice.

PER CURIAM.