Howard v. Howard

McCOMB, J.

After the trial of a divorce action plaintiff was granted an interlocutory decree of divorce and plaintiff’s attorney was directed by the trial judge to prepare proposed findings of fact and conclusions of law. This was done and the original and a copy thereof were handed to the clerk of the court. Copies were also mailed to defendant’s attorneys.

[123]

Thereafter, defendant’s attorneys prepared proposed findings of fact and conclusions of law, copies of which were mailed to plaintiff’s attorneys. The trial judge set May 23, 1952, as the date for the hearing on the findings of fact and conclusions of law proposed by the respective parties. After the hearing, the trial court did not adopt either plaintiff’s or defendant’s proposed findings of fact

in toto,

but directed the preparation of another set of findings of fact and conclusions of law which were signed on June 5, 1952.

Appeals were taken by both plaintiff and defendant from certain portions of the judgment of the trial court and plaintiff requested the inclusion in the clerk’s transcript on appeal of the findings of fact and conclusions of law which she had proposed and handed to the clerk of the court. Plaintiff was then informed that the clerk had no record of the filing of said proposed findings of fact and conclusions of law and the trial judge informed plaintiff’s attorney that they were either lost, misplaced or, most probably thrown in the wastebasket after the hearing on May 23, 1952.

On February 13, 1953, plaintiff made a motion in the superior court for an order authorizing the clerk to file a copy of plaintiff’s proposed findings of fact and conclusions of law, which motion was denied.

Plaintiff now makes a motion in this court for an order augmenting the record to include her proposed findings of fact and conclusions of law.

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This is the sole question presented for our determination:

Will this court issue an order to include in the record on appeal proposed findings of fact and conclusions of lam which were not filed in the trial court or made a pa/rt of the record in the trial court ?