Kuhn v. Ferry and Hensler

WILSON, J.

This cause is now before the court on respondents’ motion for augmentation of the record.

Judgment was rendered in favor of defendants and plaintiff has appealed on the judgment roll. Respondents request that the record on appeal be augmented by bringing up certain of the exhibits introduced at the trial, including a contract and vouchers, and the evidence of three witnesses. The motion is made on the grounds (1) that the exhibits and testimony of the witnesses are necessary to enable respondents to present their position in a proper manner, (2) that findings contained in the judgment roll to the effect that certain highways are public highways are not supported by the evidence, and (3) that the oral testimony introduced at the trial and the exhibits are necessary in order that the insufficiency of the findings in that respect may be shown and in order that the issues raised by appellant’s opening brief may be fairly and meritoriously decided.

Appellant’s opposition to the motion to augment is on the grounds (1) that the exhibits requested by respondents are not necessary to a determination of the action, and (2) that if the exhibits and the oral testimony requested by respondents are ordered to be made a part of the record on appeal then other exhibits and the oral testimony of three of plaintiff’s witnesses should be before the court in order to show that the findings are supported by the evidence.

Rule 5(f) of the Rules on Appeal expressly provides “that on motion of the respondent the reviewing court may allow augmentation of the record whenever it is necessary to

[814]

prevent a miscarriage of justice.” (22 Cal.2d 6.) Rule 12(a) (p. 11) provides that on the suggestion of any party or on its own motion, the reviewing court may order that the original or a copy of any exhibit used at the trial and portions of the oral proceedings be transmitted to it, and when so transmitted such exhibits and transcript of the oral proceedings shall be deemed a part of the record on appeal.

At this stage of the appeal we have no means of knowing whether the findings referred to in respondents’ motion are or are not sustained by the evidence, nor do we know whether the exhibits and the oral testimony referred to do or do not sustain the findings, or whether a decision of the case on the judgment roll alone will result in a miscarriage of justice. Since rule 5(f) expressly authorizes the augmentation of the record when “it is necessary to prevent a miscarriage of justice” and since respondents assert that justice cannot be done in the absence of additional portions of the record, a matter which we cannot determine without an examination of the proposed additions, the motion to augment should be granted.