Courtell v. McEachen

THE COURT.

Appellants have filed an application for an order of this court augmenting the record on appeal by adding to the clerk’s transcript on appeal a supplement show

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ing separately each instruction given to the jury, by whom each such instruction was requested, and whether the same was given as requested or whether the same was modified by the court; and also adding all instructions requested by the parties but refused by the court, showing in each instance the party by whom such instruction was requested.

It appears that the reporter’s transcript on appeal contains each instruction which was given to the jury, but does not indicate in connection with each instruction at whose request the same was given, or whether the same was given on the court’s own motion, or given as modified, and that said transcript does not contain the instructions offered by the parties and refused by the court.

By affidavit of their counsel appellants aver, “That a proper and adequate presentation of the questions to be raised on appeal, namely, the propriety of giving certain instructions, cannot be correctly and adequately presented unless the record herein is augmented” as requested.

Respondent makes no objection to an order being made directing the filing of a supplement to the clerk’s transcript showing, “. . . at whose request such instruction was given or whether the same was given on the Court’s own motion and further whether any such given instruction was modified and if so the wording of such modification.”

Respondent, however, opposes including in the requested supplement, “. . . all instructions requested by the parties but refused by the Court,” on the ground that “Appellants are barred from such augmentation by laches and inexcusable delay.”

The record reveals that on May 10, 1956, appellants filed their “Notice to Prepare Transcript and Designation of Items to be Included.”

On September 11, 1956, counsel for appellants and respondent were advised by the usual printed form notice of completion of clerk’s and reporter’s transcripts on appeal, pursuant to rule 8(a) that each party had 10 days after the mailing of such notice on said date to file a request for correction of such transcripts. No request was then made to include additional matters.