Jerome v. Twentieth Century-Fox Film Corp. ( 1947 )

LEIBELL, District Judge.

Plaintiff has made a motion for the following relief:

“(a) For an order settling the record on appeal herein on the respective appeals taken by both plaintiff and defendant from the final judgment dated October 2, 1946, entered in this action.

“(b) For an order directing the defendant to share the cost of printing the said record on appeal, as a condition of having its appeal heard on a joint record.

“(c) For an order correcting the dates stated in Item No. 11 of the plaintiff’s ‘designation of contents of record on appeal,’ so that it will read December 18, 1946, instead of November 22, 1946.”

Item “(c)” is not objected to.

Items “(a)” and “(b)” will be disposed of by the following rulings in reference to the “Additional Designation of Contents of Record on Appeal” submitted by the defendant and bearing date January 9, 1947.

The defendant has designated, as “additional portions of the record” on appeal, many pages of “colloquy between court and counsel, comment and irrelevant discourses” which have no place in a record on appeal. Moore’s Federal Practice, 1946 Supp., Vol. 3, page 328 and footnote 12, and cases cited therein; Rule 75, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Out of almost ninety designations submitted by defendant in relation to a trial record of 450 pages, I find that only the following have any merit, to wit, the designations as to—

Page 65, lines 10 to 18 “ 66, first 4 lines

“ 79, lines 6 to 8

“ 173, last 6 lines

“ 174, first line

“ 217, lines 18 to 21, part of 22

“ 301, lines 5 to 10

“ 336, lines 6 to 11

“ 385, line 15

“ 426, line 16

“ 443, first 18 lines

“ 445, lines 3 to 25

“ 446

“ 447, first line

The designation in respect to pages 45, 60, 303 and 448 related to parts of the trial record which the plaintiff-appellant intends to print, hence defendant’s said designations are unnecessary.

Defendant’s designations listed above as having merit should be added to the record on appeal, as designated by the plaintiff, and should be printed at the expense of plaintiff-appellant.

Exhibit MM for identification may be printed at the expense of the defendant; likewise, a copy of the “designations” of defendant, dated January 9, 1947.

The papers designated by defendant for its cross appeal from the order of the Court dated October 31, 1946 denying defendant’s motion for an attorney’s fee, should be printed at defendant’s expense. They are listed in paragraph 3 of defendant’s designations and will include the Court’s said order of October 31; 1946, which is the subject of a cross motion herein, to which no objection is made.

Settle an order accordingly.