Burns v. Brown

[633]

TRAYNOR, J.

This petition was originally filed in the District Court of Appeal, Third Appellate District, “to prove transcript under section 652 of the Code of Civil Procedure. ’ ’ The District Court of Appeal denied the petition, and this court granted a hearing to consider the import of section 652 and the new Rules on Appeal.

The petition alleges that petitioners, as plaintiffs, brought an action in the Superior Court of Del Norte County; that judgment was rendered against them and notice of appeal

given;

that they gave notice under rule 7 to bring up a settled statement as the record on appeal, and served and filed a proposed

statement;

that thereafter amendments were proposed by respondents, and the trial court entered an order “settling narrative statements,” and signed an Engrossed Statement on Appeal.”

Petitioners contend that the record as settled is incomplete because the trial court failed to include certain matters required by rule 7, namely, the judgment roll, notice of election to proceed by settled statement, the points to be raised on appeal, and a narrative statement of the oral proceedings. Petitioners pray that “the settled statement on appeal be proved before this court,” certified as correct, and filed with the clerk of the trial court.

The objection relating to the omission of the points on appeal is unfounded, for they were included in the settled statement.

The judgment roll, notice of appeal and notice of election to proceed under rule 7, however, are necessary parts of a settled statement (rule 7(b)), which either party has the right to have included in the record on appeal.

The trial court excluded from appellants’ proposed narrative statement all description of the evidence taken at the trial on the ground that, instead of giving a narrative summary of the proceedings, appellants “have attempted to set forth certain fragments of evidence produced at the trial, together with their interpretation of the meaning and effect of other evidence and argument thereon, which this court feels is material not properly in a narrative statement.” The trial court also excluded as “deliberate misstatement of facts” appellants’ proposed statements with respect to an order made after the trial appointing a referee surveyor and with respect to the ensuing survey fixing the boundaries of an overlap of the mining claims recorded for the parties. The