
    HANNAN et al. v. UNITED STATES.
    No. 7771.
    United States Court of Appeals for the District of Columbia.
    Decided Jan. 18, 1941.
    William T. Hannan, of Washington, D. C. , for appellants.
    Charles R. Denny, Jr., of Washington, D. G, for appellee.
    Before GRONER, Chief Justice, and MILLER and RUTLEDGE, Associate Justices.
   PER CURIAM.

It appears from the record filed herein that' on September 30, 1940, appellants filed in .the district court and served on appellee a designation of record, a statement of points on appeal, and a statement of evidence, but the designation of record on appeal did not include the “statement of evidence” for inclusion in the record. On October 12, 1940, the parties filed a stipulation as to the matter to be contained in the record on appeal and the stipulation included an item described as “statement of evidence.”

Rule 75(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that appellant shall serve upon appellee and file with the district court a designation of the portions of the record, proceedings, and evidence to be contained in the record on appeal, and appellee within 10 days may file a counter designation.

The statement of evidence which appellant filed on September 30 was not included in his designation, and it was not until Oct. 12, 1940, in the above mentioned stipulation that a “statement of evidence” was designated by appellant for inclusion in the record. Under such circumstances appellee, if dissatisfied with appellant’s narrative statement, should have 10 days within which to “require testimony in question and answer form to be substituted for all or part thereof,” as permitted by Rule 75 (c).

Instead of appellee being allowed 10 days to require testimony in question and answer form, appellant within 3 days after the designation of the statement of evidence, filed the record in this Court.

On October 23, 1940, appellee moved in this court to substitute, testimony in question and answer form for part of the “statement of evidence” filed by appellant.

In consideration whereof it is ordered that the clerk of this court be, and he is hereby, directed to return the record in this cause to the clerk of the district court for correction and completion and that appellee be, and it is hereby allowed 10 days within which to proceed to have testimony in question and answer form substituted as provided in Rule 75(c). The record as thus corrected thereupon shall be certified by the clerk and transmitted to this court. If any difference arises as to whether the record truly discloses what occurred in the district court, Rule 75(h) shall be followed.  