Kirk v. McAllister

A. J. WALKER, C. J, A decree was rendered against tbe defendants in tbe court below. It does not appear tbat there was any process issued against them, or publication against them as non-residents, or answer, or appearance by them, or a decree pro confesso against them, or any evidence adduced. Two instruments — a written consent by tbe defendants, and a mortgage — are copied by tbe register into tbe transcript before us. They are not noticed, or referred to, in tbe proceedings in tbe cause, or in the decree. Tbe record does not disclose tbat they were ever presented to tbe court, or tbat tbe register bad any authority to incorporate them in tbe record. It is well settled, tbat papers thus circumstanced are not parts of tbe record, and cannot be looked to on appeal in this court.—Cobb v. State, 19 Ala. 18; Thomason v. Odum, 31 ib. 108; Stodder v. Grant & Nickles, 28 ib. 410; Cantaline v. State, 33 ib. 439; Franklin v. Heard & Due, 31 ib. 516; Richardson v. State, 31 ib. 347. If papers so situated could be deemed matter of record, it would be in tbe power of tbe register at will to dictate and control tbe contents of tbe record, and tbe decision of tbe cause in this court. [345] The decree itself suggests tbe probability that it was based upon some consent, not made a matter of record, and upon some facts occurring after the bill was filed, which are not presented in the pleading; and it was so stated upon the argument. The bill, in the farther proceedings of the cause, will be probably improved by amendment and the addition of supplemental matter. It is therefore not necessary for us to notice the other points made upon the argument. The decree was rendered without the bringing of the parties before the court, and without any authority discoverable from the record; and it is therefore reversed, and the cause is remanded. .