Johnson v. Western Air Express Corp.

YORK, P. J. Appellants request permission to file a consolidated supplemental clerk’s transcript of amendments made during the trial to the complaint herein to conform to proof, leave therefor having been granted by the trial judge at the close of trial on December 27, 1938, over the objection of the respondent United Airports Company.

[714]Prom the affidavits filed in this court addressed to the application or request, as well as from the record on appeal, it appears that on July 7, 1939, when the transcripts in the instant causes were called for settlement the following minute order was made:

"Settlement of Clerk’s and Reporter’s Transcripts on Appeal came on for hearing, being continued from July 5, 1939, —T. G. Cecil, Reporter—2:10 P. M. to 3:15 P. M. Leonard E. Thomas appearing for plaintiff in both cases; Elber H. Tilson appearing for defendant Western Air Express Corporation in both eases; George L. Greer and John J. Goldberg appearing for defendant United Airports Company of California, Limited, in both cases. The Court orders written Amendments to conform to proof in each ease filed nunc pro tunc as of December 27, 1938. Argument on the settlement of the transcripts is concluded and the Court informs the attorneys the transcripts will be signed when corrections are made. ’ ’ Accordingly, the amendments were filed and stamped on the back, to wit: "July 7, 1939. Filed nunc pro tunc as of December 27, 1938. L. E. Lampton, County Clerk, By C. D. Wier, Deputy. ’ ’

It further appears that on said July 7, 1939, the regular clerk of the court was absent on vacation and that, through inadvertence and error on the part of the substitute clerk of said court, the original clerk’s transcripts were never sent to the county clerk’s office for the purpose of having the corrections made as ordered by the trial court, and the said transcripts were transmitted to this court without the amendments to conform to proof having been incorporated therein.

The purpose of the amendments to conform to proof was to add at a designated place in each complaint the following allegation:

"That with the approval of the Department of Commerce and with the consent of Western Air Express Corporation and other public air carrier corporations operating in and out of Union Air Terminal, defendant United Airports Company of California, Ltd., agreed with said carriers to control, and did control, such aircraft in the area surrounding said airport operated by it and as specified in said agreement, and agreed to supply a radio localizer beam to such aircraft for instrument approaches to said airport at such times as the same were needed en requested”; as well as the addition at