McDonald v. Crawford

SAMFORD, Judge. This cause was submitted on the motion of appellee to strike the return of the clerk of the circuit court to the certiorari ordered by this court, and on the merits. On October 13, 1937, appellant suggested a diminution of the record and prayed for a writ of certiorari directed to the clerk of the circuit court to send up a certain exhibit, marked “Exhibit A,” and introduced in evidence as the basis of the claim of his ward. The writ of certiorari was granted, and return thereto was made by the clerk and filed in this court on November 2, 1937. Appellee now moves to strike from the record this return. The very basis of appellant’s contention in this case rests upon /the mortgage of the cattle here involved, and this mortgage and transfer were introduced in evidence and [165] marked “Claimant’s Exhibit A,” 5-12-36, S. A.K. Such was the statement in the bill of exceptions signed by the Presiding Judge. In the preparation of the record the clerk omitted this exhibit, and this omission was made the basis for petition for writ of certiorari, as above stated. The principle question involved on this motion is as to whether or not 'the mortgage was so marked as to become a part of the bill of exceptions. It is a rule, and the only safe one, says Stone, Judge, that in judicial proceedings nothing is to be left to unrecorded memory. The record must speak by and for itself, without the aid of oral proof or human recollection. First Brickell’s Digest, 78, 79. The record must be so complete that a succeeding officer, coming into the place of the one before which the business was transacted, cannot reasonably mistake what was done. The rule as stated by the Supreme Court in Looney v. Bush, Minor 413, is: “So to describe the paper by -its date, amount, parties, or other identifying features,- as to leave no room for mistakes in the transcribing officer.” The above has consistently been the rule in this state since that time. In the instant case the return to the writ of certiorari as certified by the clerk of the court makes no reference to the case then on,trial, does not describe the parties to the suit, nor has it such other identifying features as to leave no room for mistakes in the transcribing officer. The motion to strike the return of the clerk to the writ of certiorari must be granted.