Lauchere v. Lambert

California Court of Appeal Nov 23, 1929 No. Docket No. 6909.Published

Before: Koford

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Holding. The court granted a motion for diminution of the record to include a nunc pro tunc order, holding that an appellate court should include in the record on appeal any order of the trial court that modifies the original order being appealed, regardless of claims that the order is void.

Issues

Whether an appellate court should direct the inclusion of a nunc pro tunc order in the record on appeal when the validity of that order is contested by the appellant.
Whether an appellate court should determine the validity of a trial court order based on affidavits filed in the appellate court during a motion for diminution of the record.

Disposition. Motion granted.

Quotations verified verbatim against the opinion

“To refuse to put an order in the record on appeal because it is void, is to first decide the point on appeal and then refuse to consider the appeal because not meritorious or well taken in point of law.”

“The order of September 20, 1929, is an order either correcting or changing the original order granting a new trial which is directly attacked upon this appeal. For that reason it should be put into the record upon appeal.”

[142]

KOFORD, J.

Respondents have made a motion in this court for an order for diminution of the record directing the clerk of the trial court to add to the clerk’s transcript filed herein on April 5, 1929, a certain order of the trial court made on September 20, 1929, which order the clerk of said court pursuant to the order of the trial judge entered

nunc pro tunc

as of February 21, 1929. The original order made on February 21, 1929, read: “It is ordered that said motion (for new trial) be and the same is hereby granted as prayed for.” The

nunc-pro tunc

order of September 20, 1929, which respondents' desire incorporated in the clerk’s transcript reads, “ . . . the court in open court stated its views in said matter and particularly stated that the evidence introduced was insufficient to justify the verdict and granting said motion upon that ground.

“It is ordered that said motion for a new trial be and the same is hereby granted as prayed for, and particularly upon the ground of the insufficiency of the evidence to sustain the verdict. ”

The order granting a new trial was attacked by appellant in his opening brief filed herein on July 31, 1929. Respondents are now awaiting our ruling upon this motion before filing their brief. The difference in wording between the original and the changed order granting a new trial is important on account of the following requirement of Code of Civil Procedure, section 657: “When a new trial is granted upon the ground of the insufficiency of the evidence to sustain the verdict, the order shall so specify, otherwise, on appeal from such order, it will be presumed that the order was not based upon that ground.” Obviously, the order of September 20th must be considered upon this appeal or not at all.

Appellant contends that, because the order of September 20, 1929, was made

ex parte,

without notice, and more than six months after the original order, it is void. Appellant also states that the trial court itself cannot now after the lapse of six months change the record on appeal. The trial court has not changed the record on appeal. It has changed its own record. The question before us is whether we should have the record on this appeal show the proceedings which have taken place since the appeal was perfected.

Lauchere v. Lambert

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KOFORD, J.

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