Lande v. Southern California Freight Lines

SHINN, J.

Plaintiff recovered a judgment in a court trial against Southern California Freight Lines, and the defendant gave notice of appeal. In due time defendant served and filed a notice stating that it desired to set forth the oral proceedings by a settled statement, in lieu of reporter’s transcript, under rule 7 (a) of Rules on Appeal. Defendant caused to be prepared a partial transcript of the testimony and served and filed a condensed statement in narrative form of portions of the oral proceedings and also stated the points to be raised on appeal. These points were twenty-one in number, thirteen of which specified insufficiency of the evidence to justify certain findings and that the findings in some particulars were conflicting. Plaintiff gave notice of motion to strike the proposed statement upon the ground that it was a wholly inadequate statement of the evidence material to the points raised on appeal and a sham, but also served and filed proposed amendments to the statement. The motion was based upon an affidavit in which it was stated that the trial had lasted for forty-two actual trial days, spread over a period of many months; that the testimony would cover soiqe 2,000 pages of reporter’s transcript; that the proposed statement consisted of only seventy-six

pages;

that it would be necessary, in order to prepare a full, correct and adequate statement, to have transcribed and incorporated, partly in narrative form and partly in question and answer form, testimony of some eighteen or twenty witnesses which was not included in the statement, and that the cost of transcribing said testimony would be approximately $1,250. Plaintiff, by proposed amendments, sought to have incorporated in the statement the testimony of the witnesses referred to in the affidavit.

[419]

The matter of the settlement of the statement and plaintiff’s motion to strike the proposed statement came on for hearing together. The motion to strike was denied. Defendant objected to each of plaintiff’s proposed amendments and the matter was argued at length. At the conclusion of the hearing the trial judge made an order that there be incorporated in the statement in narrative form the whole of the testimony of nineteen witnesses and portions of the testimony in question and answer form of several other witnesses as the same was set forth in plaintiff’s proposed amendments. Defendant was ordered and directed within sixty-five days to engross said statement in accordance with the order allowing the amendments. Defendant gave notice of appeal from the order allowing the proposed amendments and ordering the statement to be engrossed, and also petitioned this court for a writ of review by which it was sought to annul the order insofar as it ordered the incorporation of plaintiff’s proposed amendments. The petition for review was denied without written opinion.