Douglas County v. Sayer

Pish, P. J. Irrespective of the question whether the petitioner in the court below would have been entitled to an injunction, upon proof of the facts alleged in its petition, the judgment must be affirmed, for the simple reason that the evidence upon which the case was tried is not before this court. No evidence is incorporated in the bill of exceptions, nor is there before us any brief of evidence, approved by the trial judge and made a part of the record. The plaintiff in error has specified, as part of the record material to a clear understanding of the errors complained of, “the brief of evidence specified in the cross-bill of exceptions,” with the statement that it, need not be sent up except in that part of the record; and the clerk has sent up, with the record accompanying the “ cross-bill of exceptions,” what purport to be copies of certain affidavits and documents, which form no part of a brief of evidence approved by the trial judge, and none of which is even verified by him as having been introduced in evidence at the hearing. We suppose they were sent up by the clerk because they were specified by one of the parties to the case as parts of the record material to a clear understanding of the errors complained of. They could not become parts of the record by being so specified, and hence the clerk had no authority to treat them as such and to thus transmit them to this court. Sayer v. Brown, ante, 539, and cit. Judgment affirmed. All the Justices concur, except Simmons, C. J., absent.