In Re Guardianship of Carniglia

SPENCE, J.

This is a motion by appellant, J. M. Toner, •as director of the department of institutions, upon sugges

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tion of diminution of the record, for an order of this court directing the trial court and the clerk thereof to prepare and certify a supplemental reporter’s transcript and a supplemental clerk’s transcript containing copies of an exhibit and a petition alleged to have been omitted from the original transcripts on file.

The trial court heard the petition for settlement of the guardian’s first account and appellant’s objections to the various items thereof. Said account showed that there was no money or property remaining after the payment of the obligations of the incompetent. During the course of the hearing counsel for appellant stated, “I would like to introduce some certificates from the County Clerk’s Office of San Mateo County to the effect that there is nothing on file showing restoration to capacity after the original commitment in 1910, for that commitment.” The court said, “Very well,” and after hearing the objection of counsel for the guardian, further said, “Objection overruled.” The hearing then proceeded, but no such certificates or certificate were read in evidence nor does it appear that any such certificates or certificate were presented for marking as exhibits. Later on counsel for appellant said, “I have prepared a petition for an order directing payment to the Department of Institutions for this man’s keep under Section 2181 of the Political Code, and also a copy of an order—I presume it will be denied.” The court then said, “Ves, there isn’t anything left to pay.” At the conclusion of the hearing, the court orally made its order settling the account and thereafter a written order was filed overruling appellant’s objections to the account and settling the same.

In support of his motion appellant calls attention to the above-mentioned portions of the record and contends that “an exhibit” has been omitted from the reporter’s transcript and that “a petition” has been omitted from the clerk’s transcript. In opposition to the motion counsel for the guardian has submitted numerous affidavits purporting to show that neither the alleged exhibit nor the alleged petition ever became part of the record in the trial court. These affidavits further relate to an occurrence on the day of the hearing, but after the hearing had been concluded. The trial court had ordered the account settled and counsel for the guardian had left the courtroom. The reporter’s