Opinion
4-17-1951
SCHNIDER et ux. v. STATE. Civ. 18133.
Reuben Rosensweig, Los Angeles, for appellants. Robert E. Reed, Sacramento, George C. Hadley, John N. McLaurin, Herbert J. Williams, Los Angeles, and Harry S. Fenton, Sacramento, by George C. Hadley, Los Angeles, for respondent.
SCHNIDER et ux.
v.
STATE.
April 17, 1951.
Rehearing Granted May 3, 1951.
See 231 P.2d 177.
Reuben Rosensweig, Los Angeles, for appellants.
Robert E. Reed, Sacramento, George C. Hadley, John N. McLaurin, Herbert J. Williams, Los Angeles, and Harry S. Fenton, Sacramento, by George C. Hadley, Los Angeles, for respondent.
McCOMB, Justice.
From a portion of a judgment rendered in an inverse condemnation proceeding after trial before a jury, plaintiffs appeal, predicating error upon the trial court's instruction to the jury that plaintiffs had no easements of access to and from Olympic Boulevard at the time defendant erected a permanent wire fence along the line forming the south boundary of Olympic Boulevard and the north boundary of plaintiffs' lots.
Plaintiffs' contention is without merit for the reason that the record fails to disclose that (1) they offered any evidence to show that they had such easements or (2) made an offer to prove to the trial court by competent evidence that they had an easement of access to and from Olympic Boulevard and obtained a ruling of the trial court upon such offer of proof.
The law is settled that before error may be predicated upon the failure of a trial court to receive evidence, the party aggrieved must (1) at the time of trial make an offer of proof of the evidence the exclusion of which he claims to be erroneous (Conrad v. Conrad, 66 Cal.App.2d 280, 289, 152 P.2d 221; Dougherty v. Ellingson, 97 Cal.App. 87, 98, 275 P. 456; Merz v. Poole, 82 Cal.App. 12, 15, 254 P. 914.); and (2) obtain a ruling from the trial court upon his offer of proof (Campbell v. Genshlea, 180 Cal. 213, 220, 180 P. 336; Smith v. Smith, 163 Cal. 630, 631, 126 P. 475; Flynn v. Young, 25 Cal.App.2d 614, 619, 78 P.2d 245).
In the instant case the record on appeal consists of the reporter's transcript, the clerk's transcript and a supplemental clerk's transcript. None of these documents discloses that any offer of proof was made to the trial court. The only reference to an offer of proof consists in two documents signed by plaintiffs' attorney and filed in the clerk's office denominated 'Statement of plaintiffs' objections to court's refusal to receive their offer of proof in evidence,' and 'Offer of proof.'
Such documents although copied into the clerk's transcript constitute no part of the record on appeal. (Magee v. Mokelumne Hill Canal & Mining Co., 5 Cal. 258, 259; Smith v. Halstead, 88 Cal.App.2d 638, 640, 199 P.2d 379; Worth v. Emerson, 3 Cal.App. 158, 160, 85 P. 664; Duncan v. Atchison, T. & S. F. R. Co., 9 Cir., 72 F. 808, 812.) Since plaintiffs have not complied with the rule above stated the alleged error will not be considered by us.
Likewise there is no merit in plaintiffs' contention that the procedure followed in establishing and constructing Olympic Boulevard as a freeway was defective. There was received in evidence without objection a resolution of the California Highway Commission declaring that the public interest and necessity required the acquisition of the real property here involved for a public improvement.
When the State Highway Commission adopts a resolution declaring that public interest and necessity require the acquisition of certain real property for public improvements, such resolution becomes conclusive of the facts recited therein, and the same may not be disputed in the absence of a pleading in the trial court specifically charging fraud, bad faith or an abuse of discretion of such commission. Such question may not be raised for the first time on appeal. (People v. Milton, 35 Cal.App.2d 549, 552, 96 P.2d 159.)
In the instant case the objection now made was not presented to the trial court and was therefore waived by plaintiffs.
Affirmed.
MOORE, P. J., concur.
WILSON, Justice.
I dissent.
1. Notwithstanding the assertion to the contrary, the statement of plaintiffs' objections and the offer of proof to which reference is made in the majority opinion are a part of the record on appeal. They were filed in the superior court and are among the records of that court. They were made a part of the record on appeal by appellants' notice to the clerk of the superior court to incorporate such documents in the record on appeal pursuant to Rule 5(a) of Rules on Appeal in force in August, 1950, when the appeal was taken, 22 Cal.2d 4, 1 and by their inclusion in the record certified to this court by the clerk as required by Rule 5(d). The cases cited (some of them decided before the Rules on Appeal became effective) do not, by any stretch of language or imagination, sustain the statement in the opinion that the documents referred to are not a part of the record on appeal. The cases in which appellate courts have rejected portions of a purported record have reference to papers and other matters contained in the transcript but not authorized by law or rule to be included therein or to those not properly authenticated. Since pursuant to Rule 5(a) the documents in question were requested by appellants to be inserted in the transcript and are copied therein and certified by the clerk of the superior court, Rule 5(d), they are a part of the record before us. Decisions rendered prior to the adoption of the Rules on Appeal are of no effect upon subjects which are covered by the rules. For example, the opinion of the trial court formerly was not considered a part of the record even though copied in the transcript. Rule 5(a) now makes it a part of the record if designated by either party as one of the papers to be included.
2. The point on which the opinion is based, to wit, that an offer of proof was not presented in the trial court and a ruling made thereon, has not been raised by either party to this action and is mentioned for the first time in the majority opinion. On several previous occasions I have declined to concur in an opinion that rests on a question not raised by the parties and which they have not had an opportunity to consider or argue. I shall not join in such an injustice now.
3. The cause has been argued in the briefs in this court on the theory that the offer of proof was made by plaintiff to the trial court and ruled upon adversely. Plaintiff relies on it in his brief. Not only does defendant fail to question its having been presented to the court but repeatedly refers to it, states the evidence proposed in the offer, and argues against its admissibility. Under such circumstances the appeal should not be brushed off with nonchalance and with indifference to the real question of law presented to us, because perchance it is easier to evade than to decide it.
4. Since the absence of the offer of proof from the record is mentioned for the first time in the majority opinion and appellant will not have had an opportunity of discussing the question until he has read the conclusion of the majority, and since the briefs of both parties show that they have deemed the offer of proof to have been made in the trial court and to be properly before this court, appellant should be given leave, if he requests it, to have the reporter's transcript augmented so as to include the offer and the court's ruling thereon.
5. The point raised on the appeal is of importance not only to the litigants in this action but to the State and to owners of property that may be similarly situated in future proceedings. To the end that the law may be definitely determined, the question should be decided on its merits. The offer of proof should be considered as having been made and ruled upon by the court. By such action this court would not be subject to criticism, which will no doubt be abundantly expressed, for having failed by reason of a technicality to determine the sole question presented by the appeal. --------------- 1 The Rules on Appeal as amended which became effective January 1, 1951, will be found in 36 Cal.2d 1 ff.