Newby v. City of St. Anthony , 48 Idaho 608 ( 1930 )

Appellant asks for a diminution of the record to have the clerk certify there was no showing of service of notice of intention to move for a new trial in the record. The question of what the record shows was evidently in dispute in the lower court since the clerk made one certificate, then claiming it was false, repudiated it and made another. Appellant's praecipe did not ask for the record sought here and no reason is given for seeking such certificate at this time and in this manner. The showing is insufficient to authorize an order allowing diminution of the record in this particular. (Douglas v.Kenney, 40 Idaho 412, 233 P. 874.)

Respondent also requests a diminution of the record as follows:

"To suspend the making of any order herein until the district court, from which this appeal is taken, passes upon the motion to correct this record in the matter of the service upon appellant of the notice of intention to move for a new trial in the court below, and certifies his findings on that question to this court."

The court granted the new trial February 15, 1929. The affidavits filed in connection with the showing as to service of the notice of intention to move for a new trial were made November 30, 1929. This is a request to allow the insertion of a new order not yet made, not to supply something in the record and omitted, or something filed and omitted; hence such request should not be granted. (State v.Douglass, 35 Idaho 140, 208 P. 236; Mendini v. Milner, 47 Idaho 322, 439, 276 P. 35, 313.)

T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.