Frieder v. B. Goodman Manufacturing Co.

COLEMAN, J. This cause was submitted to be considered, first, upon the motion of the appellee, for a writ of certiorari to the clerk of the circuit court commanding him to certify to this court a perfect record ; and, if this motion is overruled, then the cause is to be considered upon its merits. Affidavits are submitted in support of the motion, and also a counter affidivit by the appellant. We here observe that a clerk, in making out a transcript to be used on appeal as the record of the orders of a court and the proceedings of a trial, should never incorporate any matter or any comments or notes of his own in the transcript. He performs his entire duty, when he transcribes the orders and judgments of the court as they are entered. There is no bill of exceptions in this case. We find an entry made by the clerk, to the effect "that the amendments made in pursuance to the rulings of the court are shown forth in this record by being underscored with red ink.” There is nothing in the record of the orders of the court which authorized the clerk to insert any such note, as a part of the transcript. It is further stated by the clerk that “the original affidavit, bond and writ of attachment, as changed by amendment, are here attached by the clerk for the inspection of the supreme court.” The clerk has no authority to take from the files of any suit an original paper, and send it to this court. It is only upon the order or rule of the judge or chancellor, and when in their opinion it is necessary, that such original paper is transmitted to this court. Proper orders are then made for its preservation. See Rule 20, page 803 of the Code. Just after an entry of record'granting a motion made by plaintiff to amend the attachment jiroceedings, the following entry appears : “At the time of the granting of this motion the defendant reserved an exception to the granting of the same.” To this the attorney’s name taking the exception is signed. It is the duty of the court to note the exceptions to his ruling, and this is the evi [245] dence that an exception lias been reserved. The attorney’s name of record entry has no office to perform in securing or preserving an exception to the ruling of the court allowing an amendment. The appellant certainly had the right to have a copy of the original attachment papers made a part of the record, and upon his motion, with proper showing, this court would have ordered the clerk to send up a complete and perfect record, but his attitude is that of resisting the motion of the appellee for a certiorari. Under the view we take of the case, the objections to the record designated by the appellee do not injuriously affect his interest. The appearance in court of "William Frieder by his authorized attorney is for all purposes as effective as service of summons. The voluntary contributions to the transcript record by the clerk, whether emphasized by red ink, or-in the matter of directing the attention of this court to “original papers,” will not be considered. Questions upon orders of the court allowing amendments upon motion of the plaintiff have been argued in briefs of counsel, but these questions are not presented in such a way as to authorize this court to consider them. They should have been presented by bill of exceptions. There is nothing of record to show what was moved for, and what allowed. Motions • entered upon the motion docket are no part of the record, unless entered on the minutes, or shown by bill of exceptions, neither of which was done as appears from the record before us. The judgment must be affirmed.