On Petition for Rehearing

Pederson, Justice.

It is stated that we have relied upon information that "is not properly before the appellate court" in reaching the conclusions that we have reached in this case. It is further stated that the "evidence which the Supreme Court has considered was completely and totally unavailable to the trial court and not considered therein." These are serious charges inferring misconduct which, if true, would unmistakably require this court to reconsider the entire case.[281 N.W.2d 564]

The "suspect" information or evidence appears to be "that portion of the testimony of Dennis Hoge relating to the acquisition of the parties' real property in the hearing of August 11, 1976, before Judge Thompson." The record confirms that, after taking the appeal, counsel for appellant served and filed a document designating certain items which would be included in the record on appeal, and therein specifically identified that partial transcript. No objection from the appellee appears in the record and the clerk of the district court certified that very same partial transcript to this court as a part of the record on appeal.

Appellant's brief and oral argument repeatedly refer to matters in that partial transcript. Neither appellee's brief nor his oral argument before this court raise any objection to the contents of the record or to appellant's argument. We said that it was not this court's function "to remake the record for review" in Waletzko v. Herdegen, 226 N.W.2d 648, 653 (N.D. 1975). Although we may not "import absolute verity" to the clerk's certification of the record as we formerly did to the trial judge's certified statement of the case [see Zarak v. Hjelle, 154 N.W.2d 377, 379 (N.D. 1967)], those who have objections must make "seasonable application, [so that] it may be ... amended as to speak the truth." 4A CJS Appeal & Error, § 1114, at 1144. That would have required appellee to move for remand for corrective action in the district court before, not after, presentation of the case to this court. In the absence of any objection whatsoever from one who has notice and ample opportunity to object, we must assume that the record is satisfactory.

It may very well be a significant factor in this case that the district judge who decided the case did not have all of the information that had been presented to the district court, some of which we did have. We acknowledge that the judge who heard a part of the testimony was replaced, after an election, by the judge who made the decision. Litigants should not be prejudiced in their lawsuits by a judge change. Perhaps when all the information is Produced and considered, no Prejudice will be evident. The surest way to clear up the problem is to remand for a new trial on the appropriate issues.

The petition for rehearing is denied and the clerk of this court is directed to remand the case to the district court for further proceedings.

Vernon R. Pederson
Ralph J. Erickstad, C.J.
William L. Paulson
Paul M. Sand
Gerald W. VandeWalle