Alexander v. McGrew

Adams, Ch. J. i. practice: certification of evidence, The appellee insists that the judge’s certificate to the evidence is insufficient, and that the judgment must, for this reason if no other, be affirmed. The certificate set out in the appellant’s abstract is in these words: “Be it remembered that this cause was submitted to the court upon the following, and no other evidence, and that the following constitutes all the evidence in the case: On the part of the defendants: Testimony of R. E. McGrew; testimony of W. H. Hall. On the part of plaintiff: Note and mortgage of defendant; testimony of L. M. Wilson; deposition of W. H. Alexander. On rebuttal: Testimony of R. F. McGrew. [288] And the foregoing is signed in open court as evidence of the facts herein contained, this November 27, 1879. R. C. Henry, Judge.” Section 2742, Miller’s Code, provides that all evidence offered upon the trial shall be taken down in writing, except where the evidence is taken in the form of depositions, as may be done. It also provides that all evidence so taken shall be certified by the judge, be made a part of the record, and go on appeal to the Supreme Court. In the case at bar the certificate does not purport to be attached to any evidence, nor does it refer to any testimony as taken in writing, except the deposition of one witness. The certificate shows merely the names of the witnesses and the side upon which they were introduced, respectively. We cannot think the certification of the names of the witnesses is a certification of the evidence within the meaning of the statute. There should be some clear and unmistakable means of identifying the evidence from the certificate. There should not be less certainty in regard to the evidence in an equitable action, when brought to this court, than in regard to the evidence in an action at law, when embraced in a bill of exceptions. We can but think, therefore, that the certificate in this case is in sufficient and that the appGal- must be Dismissed.