Summary
In Podesta v. Deluchi, 98 Cal.App. 579 [ 277 P. 364], it is held that a motion for diminution of the record by modification of the bill of exceptions, which is made nearly a year after its settlement by the trial court and after the filing of the briefs on appeal, will be denied on the ground of unexcused delay in failing to sooner apply for relief. (See, also, Poole v. Oliver, 89 Ark. 85 [115 S.W. 952].)
Summary of this case from Estate of EastonOpinion
Docket No. 6819.
April 29, 1929.
MOTION for diminution of record on appeal from a judgment of the Superior Court of the City and County of San Francisco. E.P. Shortall, Judge. Motion denied.
The facts are stated in the opinion of the court.
A.D. Schaffer and Anthony Podesta for Appellants.
Gumpert Mazzera, Frederick M. Shipper, Edward F. Sullivan and Geo, Harry Sullivan for Respondents.
The appellants have moved for an order for diminution of the record asking that they be permitted to file a modified bill of exceptions for the purpose of including therein instructions requested by either party to the action whether given or not given and all instructions given by the trial court of its own motion.
[1] The appeal was taken on a bill of exceptions which was settled after hearing of proposed amendments thereto on April 20, 1928. At the time of the settlement of this bill the instructions which are now sought to be included were expressly omitted and the parties stipulated that the appeal could be heard upon the bill of exceptions as settled. The motion for diminution of the record was made on April 17, 1929, nearly one year after the settlement of the bill of exceptions and after the appellants' and respondents' briefs had both been filed on this appeal. In opposition to the motion respondents insist that appellants are guilty of laches in making the motion and in their failure to apply to the trial court for relief in the settlement of the bill of exceptions. Without assuming that this court would have any jurisdiction to amend and supplement a bill of exceptions settled by the trial court we are satisfied that the motion must be denied because of the unexcused delay of the appellants in seeking this relief.
Motion is denied.
Sturtevant, J., and Burroughs, J., pro tem., concurred.