Hogg v. Jenifer Iron Co.

BROWN, J. This appeal is from the final decree rendered on a submission of the cause on the pleading and proof, and is here submitted without suggestion of a diminution of the record, or motion for certiorari to perfect it, under rule 19 of Supreme Court Practice (Code 1923, vol. 4, p. 885). It is conceded by the appellant that the record is incomplete in that a part of the testimony — that given orally in the presence of the trial court and taken in shorthand by the court reporter — embraced in the submission, is omitted from the record. We find appended to the record a petition praying for mandamus or other appropriate writ, to be directed to the trial court or its officers, to compel transcription of the oral testimony and certification of the same, as a part of the record, but there is no submission on this petition, nor was it called to the court’s attention at the time of the submission. The rule of practice, 19, supra, provides the parties, on the suggestion of a diminution of the record and motion for certiorari, a remedy to perfect the record, and it was the duty of the appellant, before submitting his case, to pursue this remedy; but, having submitted the case without doing so, the court has no other alternative than to dispose of the case on the record. as it now stands; The record shows no rulings on the demurrers to the bill, nor on the motions made the basis of the assignments of error, and, it appearing that the record does not contain all of the testimony upon which the case was submitted to the trial court, we cannot review the finding on the facts. Affirmed. ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.