Muller v. Robinson

[836]

HOYT, J. pro tem.

*

Appellant appeals from an order denying his motion made on January 5, 1960, to intervene in

Lelah Muller

v.

Otis Robinson et al.

This action was filed on March 5, 1958, and is to quiet title to a piece of real property. This is appellant’s second attempt to intervene in this ease. Section 1008 of the Code of Civil Procedure permits a subsequent application for the same order upon an alleged different statement of facts.

In his notice of motion for leave to intervene appellant incorporated exhibits as follows: “A”—agreement between appellant and Edward Danner, Jr., relating to investigative service; “B”—deposition of Edward Danner, Jr.; “C”—appellant’s petition for a hearing by the Supreme Court; and “D”—appellant’s petition for a rehearing filed in the District Court of Appeal, First Appellate District, State of California, on November 2, 1959. Purporting to act under rule 10(b) of the Rules on Appeal appellant had the clerk of the trial court transmit to this court these “exhibits.” These so-called exhibits were not received by this court because they were not exhibits admitted in evidence or rejected by the trial court. The pertinent part of rule 10(b) reads as follows: “When the parties shall have been notified by the clerk of the reviewing court that an appeal has been set for hearing; each party shall file with the clerk of the superior court a notice specifying

such of the original exhibits or affidavits

designated by any party for inclusion in the record, as he desires transmitted to the reviewing court. ...” (Emphasis added.) The documents in question were filed in the trial court as a part of appellant’s motion for leave to intervene in this action. They were not exhibits admitted in evidence or rejected by the trial court. If such documents were to become a part of the record on appeal it would have been necessary for appellant to designate them, as a part of the clerk’s transcript on appeal.

Appellant now files a motion to augment the record by including therein the originals of so-called Exhibits “A,” “B,” “C,” and “D” under rule 12, subdivisions (a) and (b), of the Rules on Appeal. Rule 12(b) has no application. Rule 12(a) reads as follows: “On suggestion of any party or on its own motion, the reviewing court, on such terms as it deems proper, may order that the original or a copy of a paper, record or exhibit offered at or used on the trial or hearing