Birkhofer v. Krumm

JENNINGS, J.

This is a motion by appellant for diminution of the record for the purpose of supplying an alleged omission in the reporter’s transcript which occurs in the answer of a witness to the following question: “What was the value of the property described in the deed of trust, a copy of which is attached to the complaint in the pending action, on the 7th of October, 1935?” The reporter’s transcript shows that the answer to the interrogation was “About $1500.00.” This proceeding seeks to correct the answer so that it will read “About $1500.00 an acre.”

The motion is supported by an affidavit of appellant’s counsel to the effect that upon reading the reporter’s transcript he discovered the omission of the two words “an acre” in the above-stated answer which appeared at page 138 of said transcript, whereupon he consulted the court reporter regarding the omission and was informed by said reporter that a check of his shorthand notes showed that the omission had occurred and that affiant then called the matter of the omission to the attention of the trial judge, whereupon the said judge and the court reporter caused a supplemental page 138 to be prepared correcting the answer of the witness by supplying the omitted words. In further support of the motion a document entitled “Supplemental page 138 Reporter’s Transcript” has been filed. This document shows that the answer of the witness to the aforementioned interrogation was “About $1500.00 an acre.” Appended to said document is a certificate of the court reporter which states that the two words “an acre” were inadvertently omitted from the answer when the original reporter’s transcript was prepared and filed and that the supplemental page 138 of said transcript is true and correct. Appended also to said

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document, is a certificate of the trial judge to the effect that he has examined the supplemental page 138 of the reporter’s transcript and found that the words “an acre” had been omitted from the answer of the witness as said answer appeared in the original reporter’s transcript and said judge desiring that the transcript shall be corrected certifies that said supplemental page 138 of the transcript is true and correct.

In opposition to the motion for diminution an affidavit of one of the counsel who represented respondents and was present at the trial of the action has been filed. This affidavit states in substance that in advance of trial the attorneys for respondents had secured evidence which related to the matter of the value of the property covered by the trust deed involved in the action at the time of the sale of said property under said trust deed and had determined not to introduce such evidence unless the evidence produced by appellant should tend to show that the value of the property exceeded the amount for which said property was sold pursuant to the provisions of the trust deed and that the evidence which counsel for respondents had thus procured would have tended to prove that the value of the property exceeded the amount bid therefor by a very small sum of money if in fact it exceeded the sum bid by any amount whatever; that the answer of the witness to the inquiry as to the value of the property as the same appears in the original transcript filed herein is precisely the answer which the witness returned and that no omission or error therefore appeared in said transcript; that affiant did not cross-examine the witness on the matter of value at the time of sale because the answer of the witness was the only evidence respecting value that was submitted by appellant; that a correction of the reporter’s transcript as proposed by this motion will be prejudicial to respondents since the effect will be that respondents are deprived of the privilege of cross-examining the witness on the question of value and are further deprived of the opportunity of submitting the evidence which they had which would have contradicted the testimony of the -witness and would have tended to show that the value of the property at the time of sale was approximately the amount which was bid therefor.