Russi v. Bank of America National Trust & Savings Ass'n

NOURSE, P. J.

The appellant moves for an order of augmentation of the record “whereby the clerk’s transcript of the testimony taken at the trial of said cause may be augmented by including in said transcript of testimony all oral testimony received and admitted at the trial of said cause.” The “ground” of the motion is stated to be “in order to correctly and properly present the record of the proceedings in the lower court.” In support of the motion the appellant refers to Rules on Appeal numbers 12(a), 12(b) and 12(c). The respondent resists the motion upon the ground that appellant has voluntarily foreclosed itself from the relief which it seeks by electing to appeal upon the judgment roll.

The only one of the three rules cited which is at all applicable is rule 12(a) which authorizes a reviewing court to order “that

portions

of the oral proceedings be transcribed, certified and transmitted to it.” (Italics added.) But rule 4 provides that “When an appellant desires to present any

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point which requires a consideration of the oral proceedings . . . he shall serve on the respondent and file with the clerk of the superior court, within 10 days after filing of the notice of appeal, a notice to prepare a reporter’s transcript of the oral proceedings. ...” Appellant filed a notice of appeal from the judgment on April 11, 1944. He filed on April 18th a notice to the clerk under rule 4 in which he requested “a clerk’s transcript consisting of the judgment roll and of the notice of appeal and all exhibits offered by plaintiff and defendant.” Such a transcript was prepared, certified by the clerk, and filed, improperly, with the clerk of the District Court of Appeal of the Third Appellate District on November 3, 1944, transferred and filed with the clerk of the Supreme Court on November 10, 1944, and transferred to this court on December 4, 1944. After appellant and respondent had filed their briefs and the cause had been placed on the calendar for hearing the appellant gave notice of this motion for augmentation of the record.

In order to understand the problem presented by this motion we should point out what procedures the rules offer for bringing up a record on appeal. The appellant has considerable latitude in this regard; he may choose one of three different types of record: (1) the transcript; (2) the settled statement; (3) the agreed statement. In the present case he elected to use a transcript but in doing so he had to determine at the outset whether to bring up just the judgment roll and exhibits or the oral proceedings also. He elected to come up on the judgment roll, together with certain exhibits. He gave his notices accordingly and did not request the transcription of any of the oral proceedings as required by rule 5(a). Accordingly he has elected the particular form of record called for and is not entitled to commence all over again to prepare an entirely different form of record in the absence of some such unusual circumstance as the complete inability to obtain the record originally sought. (See