Berman v Santos [1996] FMSC 20; 7 FSM Intrm. 492 (App. 1996) (28 June 1996)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as Berman v Santos, [1996] FMSC 20; 7 FSM Intrm. 492 (App. 1996)

MARY BERMAN,
Appellant,

vs.

POHNPEI SUPREME COURT CHIEF JUSTICE
EDWEL SANTOS, on his own and in his official
capacity, and POHNPEI STATE GOVERNMENT,
Appellees.

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APPEAL CASE NO. P6-1996

ORDER

Richard H. Benson
Associate Justice

Decided: June 28, 1996

APPEARANCES:

For the Appellant:
Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

For the Appellees:
Todd Richards, Esq.
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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HEADNOTE

Appeal and Certiorari - Briefs and Record
A motion to correct the record on appeal must first be made in the trial court before application to the appellate court. Berman v. Santos, [1996] FMSC 20; 7 FSM Intrm. 492, 493 (App. 1996).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This matter came before the court on the appellant's Motion to Supplement Record filed June 25, 1996. The appellant seeks to have the record in this case include the docket entries of an earlier case between the same parties which was dismissed without prejudice. Berman v. Santos, [1994] FMSC 31; 6 FSM Intrm. 532 (Pon. 1994).

The appellant relies on Rule 10(e) of the FSM Rules of Appellate Procedure. Apparently the appellant is relying on the second sentence of the rule. This sentence is the only place where the appellate division is give authority to correct the record. The sentence permits the correction of anything "omitted from the record by error or accident or is misstated therein." The appellant fails to analyze the rule in any way, simply saying that the record can be corrected. The appellee's opposition is as thin. He states that it would be improper to include the entries from the earlier case, and suggests that the appellant's remedy, available earlier, was to appeal the first case.

The second sentence of Rule 10(e) permits the correction to be made by stipulation, by the court appealed from, or by the appellate division. The appellant fails to analyze this aspect of the rule.

Because the first sentence of the rule makes it mandatory to seek correction in the trial court, and because "of the familiar principle of appellate practice that relief which may be afforded by the [trial] court must ordinarily be sought there before application therefor may be made to the [appellate] court," this motion should first be submitted to the trial court. 9 James W. Moore et al., Moore's Federal Practice 210.0, at 10-58 (2d ed. 199. 1990).

The motion is denied with leave to renew if the appellant wishes after the action of the trial court.