Gillaspie v. Scott

On Motioit to Dismiss. The opinion of the Court was delivered by Bermudez, C. J. The plaintiff and appellee moves to dismiss this ■appeal on the grounds: (a). That the certificate of the clerk is not at its proper place in the transcript and is not full; (b). That the transcript is incorrect and incomplete ; (o). That matters and documents are incorporated in the transcript which do not belong to it; (d). That a transcript belonging to this Court was, without leave, so incorporated. (a). We find the clerk’s certificate properly at foot of the transcript prepared by him in this case, and which covers seventy-five pages. Looking into the note of evidence, in the transcript, we discover an agreement to use, on appeal, the transcript of a record introduced in evidence, filed in this Court, and which is minutely described in the agreement. It was legitimate for the parties to so agree, to save time and useless costs. The certificate of the clerk refers to the agreement and to the transcript annexed to his own, and which in all other respects satisfies legal requirements. (b). The transcript does not appear to be incorrect. If it is hot full, in not containing a copy of the record offered in evidence, it is because the parties have agreed that it be not transcribed. The clerk has done as he was directed and authorized to do, and acted properly under the circumstances. (c). We have been unable to discover any matter or documents as incorporated in the transcript which are foreign to it. The complaint in this respect also is not well founded. (d). The transcript which was to be used, by consent, in this Court in case of appeal, is attached to the transcript of the case before us. It was withdrawn from the clerk’s office of this Court apparently with [769] out leave of Court, and annexed to the transcript of the present ease. This withdrawal and use of a transcript, in a decided case, was unauthorized and is censurable. The Clerk of this Court should not have permitted it to go from his hands, and the clerk of the lower court should not have used it the way he did, in having both bound together. This irregularity cannot, however, affect the sufficiency of the transcript in the case before the Court, so as to justify the dismissal of the appeal. If it was wrong- — as ft really was, to withdraw and use, without permission, this transcript, as was done — the wrong is repaired by a return of it to the clerk’s office. After the decision of this case, the clerk will separate the bound transcripts and place them in order in this office. The motion to dismiss is overruled.