Orso v. City and County of Honolulu, 5428

• Decision Date: 03 October 1973
• Docket Number: No. 5428,5428
• Citation: 514 P.2d 859,55 Haw. 37
• Parties: John Freeman ORSO, Plaintiff-Appellee, Cross Appellant, v. CITY AND COUNTY OF HONOLULU, a municipal corporation, Defendant-Appellant, Cross Appellee.
• Court: Hawaii Supreme Court

Page 859

514 P.2d 859

55 Haw. 37

John Freeman ORSO, Plaintiff-Appellee, Cross Appellant, v. CITY AND COUNTY OF HONOLULU, a municipal corporation Defendant-Appellant, Cross Appellee.

No. 5428.

Supreme Court of Hawai'i.

Oct. 3, 1973.

Syllabus by the Court

It is improper for counsel of a party to an appeal to present to this court matters not in the appeal record, such as by attaching to the brief, as appendices thereto, affidavits regarding such matters or copies of documents relating to such matters. All such appendices and arguments in the brief based thereon will be stricken.

David C. Schutter, Honolulu, for plaintiff-appellee, for the motion.

Charles F. Marsland, Jr., Deputy Corp. Counsel, City and County of Honolulu, for defendant-appellant, contra.

Before RICHARDSON, C. J., MARUMOTO, ABE, and KOBAYASHI, JJ., and FUKUSHIMA, Circuit Judge, in place of LEVINSON, J., disqualified.

PER CURIAM.

Plaintiff-appellee, cross-appellant John Freeman Orso moved to strike from the opening brief of defendant-appellant, cross-appellee City and County of Honolulu appendices and all references therein to matters allegedly contained in the final argument of counsel for plaintiff-appellee, cross-appellant, on the ground that they are totally outside the records and files in the above entitled matter.

The motion is hereby granted.

H.R.C.P., Rule 75(a) provides: 'Composition of the Record on Appeal. The original papers and exhibits filed in the circuit court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the circuit court shall constitute the record on appeal in all cases.'

H.R.C.P., Rule 75(a) provides: 'Statement of the Evidence or Proceedings When No Report Was Made or When the Transcript is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within 10 days after service. Thereupon a statement and any objection to proposed amendments shall be submitted to the circuit court for settlement and approval and as settled and approved shall be included by the clerk of the circuit court in the record on appeal.'

Rule 3(b)(5) of the rules of this court requires, inter alia, that opening briefs contain '(a) concise statement of the points on which appellant intends to rely, set forth in separate numbered paragraphs. Each point shall refer to the alleged error upon which appellant intends to rely and shall show the manner in which it is raised, with a reference to the record where the same may be found.'

These rules are clear. Matters outside the trial record, unless settled and approved by the trial court, pursuant to H.R.C.P., Rule 75(c), may neither be appended nor referred to in appellate brief.

3A Barron & Holtzoff, Federal Practice & Procedure § 1590 (Rules ed. 1958), states the general rule: 'Matters not appearing in the record will not be considered by the court of appeals, unless the occurrence thereof is conceded by the parties. Thus a question involving evidence not in the record cannot be reviewed on...