Opinion
Action by Boucher Inventions, Limited, and Charles P. Boucher against Sola Electric Company and Joseph G. Sola. On defendants' motion for correction of record.
Order in accordance with opinion.
See, also, D.C., 35 F.Supp. 504.
Motion for Correction of Record.
‘ Now come the defendants, by their counsel, and move, under the provisions of Rule 75(h) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, that certain differences as to the transcript of the testimony of plaintiffs' expert witness, Aubrey E. Noble, given at the trial of the above-entitled cause prior to the test made April 16, 1940, at the George Washington University on defendants' exhibit 5 transformer be settled by the Court and that the record on appeal be made to conform to the truth.
‘ The grounds for the motion are as follows:
‘ 1. Plaintiffs contend that the transcript filed herein is ocmplete and that there is no error in the transcript of the testimony given by their aforesaid expert witness.
‘ 2. Defendants contend that plaintiffs' aforesaid expert witness testified positively and without qualification, prior to the test at the George Washington University on defendants' exhibit 5 transformer, that if one of the secondary coils of the transformer were short-circuited and a current of 40.5 or 41 m. a. were permitted to flow through it the coil would burn out in 2 hours, and that no such testimony appears in the transcript; and defendants further contend that there is no testimony by said witness prior to said test on said transformer, as reported in the transcript, pages 57 and 58, to the effect that one of the shorted secondary coils would have to run for about 5 to 8 hours before it would be damaged and that it would have to run for about 12 to 13 before it would be totally burned out.
‘ In support of this motion, true copies of the affidavits of Leslie W. Fricke, Nelson J. Jewett, Joseph G. Sola, and Ralph A. Dicksen, verified May 7, 1940, April 30, 1940, May 7, 1940 and May 6, 1940, respectively, attached to the brief for the defendants filed with the Court on or about May 9, 1940, are submitted herewith.
‘ Leslie W. Fricke,
‘ Nelson J. Jewett
‘ Attorneys for Defendants.
‘ Washington D. C.,
‘ January 13, 1941.’
John Howard Joynt and Herbert S. Ward, both of Washington, D. C., for plaintiffs.
Leslie W. Fricke, of Chicago, Ill., and Nelson J. Jewett, of Washington, D. C., for defendants.
BAILEY, Justice.
Affidavits contrary to those of the defendants were submitted to the Court and filed in the records of the case, being those of Aubrey E. Noble, filed January 16, 1941; George Gordon Payne, the court reporter who wrote the transcript of the testimony, filed January 16, 1941; supplementary affidavit of George Gordon Payne filed January 23, 1941; Herbert S. Ward and John Howard Joynt, attorneys for plaintiffs, filed January 23, 1941.
The transcript of the testimony made by the reporter is in accordance with my recollection of the testimony. This was my recollection when the question of the correctness of the transcript was first made, but I have had some difficulty in understanding the proper practice under the new Rules. There is no official reporter in our Court, and it would seem that there is no ‘ official record’ in the sense that the transcript of testimony by the reporter is a ‘ redord’, and it would seem that the power of the Court so far as a statement of the evidence is concerned, is limited to settling any dispute between the parties as to what the evidence before the Court actually was.