Shellhaas v. Petrolane, Limited
| Decision Date | 23 June 1950 |
| Parties | SHELLHASS et al. v. PETROLANE, Ltd., et al. Civ. 17307. |
| Court | California Court of Appeals Court of Appeals |
Betts, Ely & Loomis, Los Angeles, for appellants.
A. J. O'Connor, George J. Hider, Birger Tinglof, all of Los Angeles, for respondents.
This action was brought to recover damages for personal injuries alleged to have been suffered by plaintiffs in a collision between an automobile in which they were riding, driven by one Elsie Kay, and a truck owned by defendant Petrolane, Ltd., and driven by their employee, defendant Maxwell, in the course of his employment. The case was tried by a jury which rendered a verdict in favor of defendants and judgment was entered on the verdict. Plaintiffs' motion for a new trial was made upon all the statutory grounds (Code Civ.Proc., sec. 657) and, as shown by the minute order and by the written order signed by the trial judge, was granted on the grounds of insufficiency of the evidence to sustain the verdict and judgment, newly discovered evidence, and accident and surprise which ordinary prudence could not have guarded against. Defendants have appealed from the order granting a new trial.
By reason of the unusual proceedings to be discussed which occurred after the death of the trial judge and after the clerk had prepared and certified the transcript on appeal, this court, pursuant to Rule 12 of the Rules on Appeal (22 Cal.2d 11), ordered the original files relating to the motion for a new trial and to the purported 'correction' of the transcript, including the notices of motions and affidavits used in connection therewith, to be transmitted to this court and to be made a part of the record on appeal.
It appears that the motion for a new trial came on for hearing on May 9, 1949, before Judge Burnell, who had tried the case. On that date the following minute order was made which was entered on May 13:
On May 16 Judge Burnell signed and filed an order which was entered on May 24, reciting that the motion for a new trial came on for hearing, that the parties, plaintiffs and defendants, were present by their respective attorneys, naming them, and 'It is hereby ordered, adjudged and decreed and the same [the motion] be and is hereby granted on the grounds of the insufficiency of the evidence to support the verdict and judgment and upon the grounds of newly discovered evidence and accident and surprise which ordinary prudence could not have guarded against.'
On May 31 defendants filed their notice of appeal to this court.
On August 15 defendants filed a request for correction of clerk's and reporter's transcripts. On the following day the clerk of the superior court, apparently having overlooked the request for correction, certified the transcript to be full, true and correct. Thus the transcript of the orders made by Judge Burnell reflected accurately the minute order entered by the clerk and the formal order signed and filed by the judge.
But defendants being dissatisfied with a true picture of the record made by the trial judge filed an application after the latter's death to have it corrected. Such application and the hearing thereon occurred more than four months after the appeal had been lodged in this court. The contents of such application and action taken appear in the original files which we ordered to be made a part of the record on appeal. Such files disclose that the hearing on the application was referred to Judge Hanson for decision.
Under date of October 5, 1949, a minute order was made by Judge Hanson purporting to order the 'correction' of the transcript on appeal, which reads as follows:
The particulars in which the transcript was ordered to be changed are not made to appear in the order. Two changes were made in the clerk's transcript: (1) In the transcript of the minute order of May 9, 1949, above quoted, granting a new trial, the words 'accident, surprise and newly discovered evidence' are deleted and the following inserted in lieu thereof: 'newly discovered evidence and the fact that defendants' counsel has won too many law suits in this court.' The result of this change is that the grounds now appearing in the transcript are: 'insufficiency of the evidence to sustain the verdict or judgment, newly discovered evidence and the fact that defendants' counsel has won too many law suits in this court.' In the margin of the transcript appears the legend (2) A like deletion and insertion were made in the transcript of the written order signed by Judge Burnell on May 16, 1949, and a similar legend is in the margin of the transcript.
Accompanying the request for correction of the transcript is an affidavit of one of defendants' counsel to the effect that at the hearing of the motion for a new trial Judge Burnell said: 'I am granting this motion for new trial upon three grounds: one, insufficiency of the evidence; two, newly discovered evidence; three, Mr. Ely has won too many lawsuits in this Court'; that affiant then requested the court to place his ruling on the last two grounds 'so that at least my clients will have a fair chance to upset this ruling which we believe to be erroneous'; that the judge replied, 'Well, of course, the last ground is not a legal ground.' Mr. Kelly, an attorney not connected with this case, who was waiting in the courtroom to begin the trial of another action and who heard the proceedings on the motion for new trial, made an affidavit that the judge's reply was thus: 'The last ground is not a legal ground, and I am going to grant this motion on the ground of the insufficiency of the evidence,' and that the judge's statement was made 'in fun' and not in a malicious way.
No motion appears in the transcript, and none is in the original files of the superior court, to amend either the minute order or Judge Burnell's signed order granting a new trial. In the absence of an amendment of the orders there could be no valid...
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Jackson v. State
...Assn., 127 Cal.App.2d[87 Idaho 276] 285, 273 P.2d 824; Wyman v. Municipal Ct., 102 Cal.App.2d 738, 228 P.2d 89; Shellhaas v. Petrolane, 98 Cal.App.2d 171, 219 P.2d 797; Govea v. Superior Court, 26 Cal.App.2d 27, 78 P.2d 'The truth of the record concerning matters within the jurisdiction of ......
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...by amendment pursuant to Lint's motion to correct clerical errors in the clerk's minute order. (See § 473; Shellhaas v. Petrolane Ltd., 98 Cal.App.2d 171, 174, 219 P.2d 797; Estate of Careaga, 61 Cal.2d 471, 39 Cal.Rptr. 215, 393 P.2d 415.) The amendment likewise disposes of Chisholm's cros......
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