In Re Guardianship of Carniglia

This is a motion by appellant, J. M. Toner, •as director of the department of institutions, upon sugges tion of diminution of the record, for an order of this court directing the trial court and the clerk thereof to prepare and certify a supplemental reporter’s transcript and a supplemental clerk’s transcript containing copies of an exhibit and a petition alleged to have been omitted from the original transcripts on file.

The trial court heard the petition for settlement of the guardian’s first account and appellant’s objections to the various items thereof. Said account showed that there was no money or property remaining after the payment of the obligations of the incompetent. During the course of the hearing counsel for appellant stated, “I would like to introduce some certificates from the County Clerk’s Office of San Mateo County to the effect that there is nothing on file showing restoration to capacity after the original commitment in 1910, for that commitment.” The court said, “Very well,” and after hearing the objection of counsel for the guardian, further said, “Objection overruled.” The hearing then proceeded, but no such certificates or certificate were read in…

I concur in the order upon the last ground stated—that it does not appear that the proposed exhibits are material on this appeal. I do not approve the provincial tactics which took advantage of counsel’s oversight in not insisting upon having the exhibits marked in the presence of the court while at the same time and under like circumstances an exhibit offered by local counsel was included in the record and certified as having been duly filed.

A petition for a rehearing of this cause was denied by the District Court of Appeal on October 6, 1933.