Dugan v. Forster

[145]

TYLER, P. J.

Application to amend the record on file herein.

It appears from the affidavit in support of the motion that in the preparation of the bill of exceptions to be used on appeal certain evidence was inadvertently omitted, which evidence is necessary to present to this court the alleged error of the trial court in making its findings that plaintiff was entitled to recover the amount of judgment rendered in his favor.

It is not denied that the evidence sought to be included in the bill of exceptions was received by the trial court, but it is insisted that petitioner had ample time and opportunity to have included the same in the record and not having done so he is concluded by the provisions of section 473 of the Code of Civil Procedure.

An appellate court, in the absence of statutory mandate or authoritative expression to the contrary (and in this state there is none), has, in the exercise of its jurisdiction, power to direct and cause the correction of a record before it at any time during the pendency' of the appeal; and, this without reference to the provisions of section 473 of the Code of Civil Procedure.

It has repeatedly been held that technical objections are not favored and that a record may and will, when necessary, be corrected, unless a right of the adverse party is injuriously affected thereby. Appellate courts look with favor upon an amendment, the effect of which is to enable them to review the decision of the lower court in view of all the facts which that court had before it when it made its decision.

(McMahon

v.

Hamilton,

202 Cal. 319, 325 [260 Pac. 793].) The motion to amend the record is granted.

Knight, J., and Cashin, 3"., concurred.