Sojourner v. Charpontier

Martin, J. delivered the opinion of the court. The counsel for the appellee has moved this court to dismiss the appeal on several grounds; one of which only,.it is necessary to notice. The parties to the appeal are alone competent to make a statement of facts, and not other persons tvlio are not cited in the appeal. So, where the appellant agreed with the warrantor, that the original documents should he brought up and read in the Supreme Court, and such war-rantor was not citedJEfeld, that the appeal must be dismissed on the motion of the appellee, the documents not being produced. An agreement between the par-tiestotheappeal, to bring up the original documents as part of the record, would be binding on both parties. The clerk of the District Court certified, that all the evidence on which the case was tried, is faithfully transcribed and contained in the record, except certain documents which the parties agreed should not be copied, but that the originals should be taken up and read in this court. As the clerk is without authority to attest such an agreement, the appellant has produced an affidavit, averring, that it was agreed between the counsel for the appellant and A. Porter, who was one of the parties cited in warranty, that the originals of the omitted documents should be used on the appeal. The judgment in the court below having been rendered against the plaintiff and in favor of the defendant'in possession, the former contented himself with taking his appeal against the latter alone, leaving him (the defendant,) -the choice to make such of the persons cited in warranty parties to the appeal, as he chose. None were so made, nor could, perhaps, be made. As the judgment appealed from is to he reviewed contradictorily with the defendant and appellee only, it was with him or his counsel that a statement of facts should first be attempted to be made. This was not done. The transcript which has been brought up is insufficient. But, it is contended, that this defect has been cured by the agreement which is stated in the affidavit. Had-this agreement been made between the parties to the appeal, they would have been bound by it. But this agreement took place between the appellant and one of the warrantors, against whom no judgment was given; and no appeal was prayed. The defendant and appellee, who was not a party to this agreement, correctly urges, that it was as to him, res alios acta, and he is not bound by it. Let the appeal, therefore, be dismissed, with costs.