Opinion
No. 5417.
January 10, 1930.
MOTION in re diminution of the record. Denied.
F.A. Miller, B.H. Miller and J.R. Smead, for Appellant.
The Nevada court has passed upon a similar question, to this effect, that a diminution of record contemplates bringing up something that has been overlooked, but not something that was not a part of the record when the appeal was taken, upon which record the appeal must necessarily depend. ( Warren v. Wilson, 46 Nev. 272, 210 P. 204, 212 P. 497; Kirby v. Superior Court, 68 Cal. 606, 10 P. 119.)
And the supreme court of Utah has discussed a question very similar to the one now before this court. ( Warnock Ins. Agency v. Peterson Real Estate Inv. Co., 35 Utah, 542, 101 P. 699.)
James G. Gwinn, F.L. Soule and Grant Soule, for Respondent.
This is not a case of seeking to make service now, and asking to have it relate back to a date within the jurisdictional time for service, but, on the contrary, to show the fact of service which was actually made within the jurisdictional time.
"It is the fact of service which gives the court jurisdiction, and not the proof of service." ( Call v. Rocky Mountain Bell Tel. Co., 16 Idaho 551, 133 Am. St. 135, 102 Pac. 146.)
In this case this court had this to say: "It would be a lamentable commentary on the administration of justice, if a defendant who has been actually served with process can allow a default judgment entered against him, and thereafter procure the judgment to be vacated and set aside, either in the court in which it was rendered or on appeal, simply because the proof of service on file is insufficient, when the plaintiff is, at the same time in court presenting a sufficient and amended proof of service, and clamoring for an opportunity to file the same and have it made a part of the record in the case."
Later, in the case of Blandy v. Modern Box. Mfg. Co., 40 Idaho 356, 365, 232 P. 1095, this court affirmed the principle set forth in the Call case again, by approving the following rule on the subject:
"When service has, in fact, been made, so as to give the court jurisdiction, but the proof thereof is defective, or altogether lacking, the defect may be remedied or the proof supplied after judgment. It is the service, and not the proof thereof, that gives the court jurisdiction."
Appellant asks for a diminution of the record to have the clerk certify there was no showing of service of notice of intention to move for a new trial in the record. The question of what the record shows was evidently in dispute in the lower court since the clerk made one certificate, then claiming it was false, repudiated it and made another. Appellant's praecipe did not ask for the record sought here and no reason is given for seeking such certificate at this time and in this manner. The showing is insufficient to authorize an order allowing diminution of the record in this particular. ( Douglas v. Kenney, 40 Idaho 412, 233 P. 874.)
Respondent also requests a diminution of the record as follows:
"To suspend the making of any order herein until the district court, from which this appeal is taken, passes upon the motion to correct this record in the matter of the service upon appellant of the notice of intention to move for a new trial in the court below, and certifies his findings on that question to this court."
The court granted the new trial February 15, 1929. The affidavits filed in connection with the showing as to service of the notice of intention to move for a new trial were made November 30, 1929. This is a request to allow the insertion of a new order not yet made, not to supply something in the record and omitted, or something filed and omitted; hence such request should not be granted. ( State v. Douglass, 35 Idaho 140, 208 P. 236; Mendini v. Milner, 47 Idaho 322, 439, 276 P. 35, 313.)
T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.