Pruitt v. McWhorter

SOMERYILLE, J". — We have examined the testimony contained in this record with great care, and can discover no error prejudicial to the appellant The assignments of error are all based upon exceptions taken to the register’s report. The findings of the register, so far as approved by the chancellor, seem to be sustained, in most cases; by a preponderance of. the evidence. In no instance can we clearly see that any one of the exceptions is well taken. Many of these exceptions,moreover, are not taken in accordance with the requirements of the '93d Rule of Chancery Practice. — Code, 1876, p. 174; Mooney v. Walter, 69 Ala. 76; Crump v. Crump, Ib. 156; Vaughan v. Smith, Id. 92. We can not look to the original books of partnership accounts, which are omitted from the transcript, and are agreed to be sent up to this court as a part of the testimony in the cause. There is no rule of practice- which authorizes material evidence, relied ou as testimony, in support of exceptions taken or otherwise, to be omitted from the regular transcript, and substituted by the original papers, transmitted to this court as evidence by agreement of counsel. The 20th Rule of Practice authorizes the transmission of original papers to the appellate court, only when, in the opinion of the judge, or chancellor, it is deemed necessary, for some special reason, that they should be inspected by the judges of this court. It is only when the proper order is made that, such, papers can be considered by us, “ in connection with the transcript of the proceedings.” — Rule of Practice No. 20 ; Code, [317] 1876, p. 157. This rule, it is obvious, does not authorize the omission of such papers or documents from the transcript. They should be copied there, in all cases, where they constitute material testimony, whether the originals are transmitted to the appellate court or not. It is equally manifest that the Buie of Practice adopted by this court on April 25th, 1878, was not designed to cover a case of this kind. It was intended to authorize, by- agreement of counsel, the abbreviation of records, brought to this court on appeal, by the omission of all irrelevant or redundant matter,— evidence which might be deémed by counsel to be unnecessary to be considered by this court, in deciding the particular questions brought up for review. This can be done by written agreement of counsel, “ specifying what part of the proceedings shall be inserted in the transcript.”- — Buie of Pr. No. —; 71 Ala. p. iv. The decree is affirmed.