People v. Gorman

California Court of Appeal Aug 14, 1944 No. Civ. No. 7053Published

Before: Adams

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Holding. The court denied the respondent's motion to augment the record on appeal with a nunc pro tunc order, finding that the moving party failed to demonstrate the materiality of the order to the merits of the appeal and that the appellate court could not determine the validity of the trial court's correction of its own minutes.

Issues

Whether the appellate court should grant a motion to augment the record with a nunc pro tunc order correcting trial court minutes.
Whether the appellate court can determine the validity of a trial court's nunc pro tunc order during a motion to augment the record.

Disposition. denied

Quotations verified verbatim against the opinion

“It seems logical to infer that if the original minutes are immaterial, an order correcting them, made long after the entry of the judgment appealed from, is likewise immaterial.”

“this court cannot on this motion determine what actually transpired on September 20, 1937, nor can it determine whether the trial court had authority to make the purported change in its minutes.”

ADAMS, P. J.— On December 13, 1943, appellant June Knapp filed in the Supreme Court an appeal from a judgment rendered in favor of respondent on January 18, 1943. The record on appeal consists of the clerk’s transcript, and two reporter’s transcripts of testimony given and proceedings had on September 14, 1942, and August 20, 1940, respectively.

After the filing of the appeal in the Supreme Court the cause was transferred to this court, and on February 5, 1944, appellant filed a notice of motion for an order for “Diminution of Record, Augmentation and Correction of the Record, ’ ’ requesting, among other things, that there be incorporated in the record on appeal what he designated as an “Order of Abatement” made on September 20, 1937, which order was alleged to have been omitted from the clerk’s transcript. [484]A copy of this purported order was attached to the notice of motion and reads' as follows.- “By the Court:—The Order heretofore made setting this case for trial is vacated, and the ease dropped from the Trial Calendar, to be set on motion.”

A written “opposition” to appellant’s motion was filed by respondent, verified by Lincoln V. Johnson, one of its attorneys, in which it was alleged 1 ‘ That the minute orders of September 27 [20], 1937 and August 20, 1940 are not material to the appeal, or any question to be determined upon the appeal, ’ ’ and that ‘ ‘ Said minute orders have no possible relation to the judgment which is the subject of the appeal herein. ’ ’

Hearing on appellant’s motion was had on March 3, 1944, at which time the matter was argued by respective counsel. Counsel for appellant offered and was granted permission to file a copy of the minutes of the trial court dated August 20, 1940, but no copy of the minutes of September 20, 1937, was filed.

On April 6, 1944, respondent, by its counsel, Lincoln V. Johnson, filed herein a notice of motion for augmentation of the record on appeal by adding thereto what was designated as an “ Order for Correction of Certain Court Minutes, ’ ’ said order purporting to have been made September 10, 1943, nunc pro tunc as of September 20, 1937, and reading as follows:

“ORDER FOR CORRECTION OF CERTAIN COURT MINUTES

“It appearing from the Court’s own knowledge that the Minutes of the Court as recorded in the Book of Minutes regularly kept are incorrect and incomplete in certain respects and in specified eases:

People v. Gorman

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