260 P. 793 | Cal. | 1927
THE COURT.
Plaintiff and appellant herein presents a motion that this court vacate and set aside an order heretofore made which said order authorized the withdrawal of the transcript in this cause from the files of this court for the purpose of correcting and amending the same. The action was instituted to recover damages for injuries suffered by the plaintiff as a result of the defendant's alleged negligence. After trial, the jury returned a verdict for the defendant and judgment was accordingly entered. From the judgment so entered the plaintiff prosecuted this appeal. The transcript filed herein consists of the judgment-roll, notice of appeal, and what purports to be a bill of exceptions certified to by the trial judge on October 25, 1926. Thereafter the respondent noticed a motion for the July calendar of this court which motion suggested diminution of the record herein in order that the same might include the proposed and allowed amendments of respondent to the bill of exceptions submitted by appellant. In support of said motion for diminution the respondent filed, among others, an affidavit of the trial judge wherein the affiant states that "On April 22, 1926, defendant filed herein his proposed amendments to plaintiff's proposed bill of exceptions; thereafter and on the 10th day of June, 1926, the matter of the settlement of plaintiff's proposed bill of exceptions and defendant's proposed amendments thereto came on regularly for hearing before affiant and on said date affiant settled said bill of exceptions and allowed all of the proposed amendments of the defendant. *321
"At no time was said bill of exceptions engrossed and the plaintiff did not at any time incorporate the or any of the said amendments of the defendant, settled and allowed as aforesaid.
"Thereafter and on the 25th day of October, 1926, the plaintiff by his attorney presented to affiant as the judge of said court, an instrument in writing which affiant believed to be an engrossed bill of exceptions allowed as aforesaid, and so believing, affiant as such judge, allowed, settled and approved the same; said instrument in writing so presented to and signed by affiant as such judge, contains only the plaintiff's proposed bill of exceptions and does not contain the proposed and allowed amendments of the defendant, as affiant is informed and believes, and said instrument was and is not an engrossed bill of exceptions; affiant as such judge, would not have signed said instrument if affiant knew the same was not an engrossed bill of exceptions and if affiant knew that there was not contained therein the proposed and allowed amendments of the defendant."
It may be remarked in passing that the appellant filed his opposition to said motion for diminution accompanying the same with an affidavit of counsel which, in several material particulars, contradicts the affidavit of the trial judge. Upon the hearing of said motion this court made its order, now sought to be vacated, authorizing the withdrawal of the transcript to permit of its amendment so as to include in the bill of exceptions contained therein the proposed and allowed amendments offered by respondent. The appellant thereupon noticed the motion now under consideration for the October calendar of this court and seeks thereby to have this court vacate and annul the order just above referred to.
In the main, the appellant contends, in support of his motion to vacate, that both this court and the trial court are without jurisdiction and power to amend or cause to be amended what purports to be the bill of exceptions settled herein. The appellant in advancing this argument relies upon the provisions of section 473 of the Code of Civil Procedure and the case ofMerced Bank v. Price,
Before launching into a discussion of the issue so presented we pause to say that, in our opinion, the case of *322 Merced Bank v. Price, supra, is without persuasive force and not in point, for the reason that the trial court in that case had attempted to amend a bill of exceptions which had been prepared and settled prior to the taking of the appeal from an order denying a new trial. In the instant case the bill of exceptions was prepared and settled after appeal taken. That there is a clear line of demarcation between those cases in which the bill of exceptions is settled prior to the appeal and those in which settlement occurs subsequent to the prosecution of the appeal is now definitely settled. This distinction is considered in the case of Baker v. Borello,
The opinion in Merced Bank v. Price, supra, is based upon this very distinction and cites Baker v. Borello, supra, in support thereof. It would appear, therefore, that the second ground of decision in Merced Bank v. Price, supra, from which appellant seeks to derive comfort, while correctly stating the law, is purely dicta. Moreover, the case of Merced Bank v.Price, supra, would appear to be distinguishable from the instant case for the reason that this court was there called upon to determine whether the trial court had jurisdiction and power to amend the bill of exceptions as therein attempted. The issue here for solution is whether this court, or any appellate tribunal, may, under *323 the circumstances here presented, properly direct the lower court to amend a bill of exceptions or transcript even though the six-months period provided for in section 473 of the Code of Civil Procedure has elapsed.
[1] We have concluded that our order of July 11, 1927, authorizing the withdrawal and amendment of the transcript herein in the particulars above referred to was a proper exercise of our appellate jurisdiction. In so concluding we are not unmindful of the numerous authorities, many of which are relied upon by the appellant and moving party, which declare, and correctly so, that a trial court is without power to and may not amend a record to be used upon appeal more than six months after the same has been certified as a correct transcript of the proceedings had and taken in such court. (Fountain Water Co. v. Superior Court,
We have failed in our examination of the authorities to uncover any statutory period of limitation upon this inherent appellate power. The absence of such limitation tends strongly to indicate that an appellate court may, in its discretion, permit of amendments to a record before it and should in this respect be liberal so as to secure a hearing on the merits. (Perri v.Beaumont,
It has repeatedly been held by this court that technical objections are not favored and that a record may and will, when necessary, be corrected unless a right of the adverse party is injuriously affected thereby. (California Wine Assn. v.Commercial Union Fire Ins. Co.,
As indicated at the commencement of this opinion the trial judge authenticated what appears in the transcript on file herein to be a bill of exceptions under the erroneous impression and belief that it was an engrossed bill of exceptions presented by the appellant and containing the previously allowed amendments suggested by the respondent. The affidavits on file disclose that the bill as certified by the judge is not the bill of exceptions theretofore settled by him. To hold under these circumstances that this court may not direct the correction of such misprision would result, in many instances, in the disposition of causes upon technical grounds and without regard to their substantial merits. In the absence of statutory mandate or authoritative expression to the contrary we feel constrained to conclude, as already stated, that an appellate court in the exercise of its jurisdiction may direct and cause the correction of a record before it at any time during the pendency of the appeal; and, this without reference to the provisions of section 473 of the Code of Civil Procedure.
The appellant's motion to vacate the order heretofore made herein is denied. *326