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This is a motion by - the plaintiff and appellant to modify and make more certain an order of this court made on December 5, 1939, pursuant to the motion presented on that day by counsel for the defendants and respondents for a “diminution of the record and for an order permitting the correction of an error and defect in the transcript on appeal, by filing as an amendment thereto a document entitled, ‘ Order Amending Engrossed Bill of Exceptions, Nunc Pro Tunc’ ”, a certified copy of which order was appended to the notice of motion. In granting the motion the following minute order appears: “Appellant allowed thirty day to file supplemental transcript and opening brief; usual time for further briefs.”

*179 The appellant’s opening brief was on file at the time the foregoing motion for diminution was made.

The appeal herein is from a judgment dismissing the action on the ground that the issues had been determined between the parties in a former action (See v. Joughin, 18 Cal. App. (2d) 414 [ 64 Pac. (2d) 149 ], action No. 369870 in the superior court), and were therefore res judicata. Counsel on the present appeal apparently concluded that the bill of exceptions did not adequately…