Blackford v. Gibson

Hart, J. (after stating the facts). It is first insisted that the decree must be affirmed because there is no bill of exceptions in the record. The bill recites that the case was heard before the chancellor upon the complaint, the affidavits of certain designated persons, the demurrer and answer of the defendants, and the oral evidence of certain persons named in the decree. There is no bill of exceptions contained in the record. It is true there is a certificate of a stenographer that certain testimony which he has transcribed contains all the oral evidence introduced in the cause, but there is nothing to indicate that the parties agreed that the oral testimony should be reduced to writing and filed as evidence in the case, or that the court ordered it so filed. The certificate of the stenographer that his transcribed notes contained all the oral testimony that was introduced in the cause avails nothing. It was the duty of the parties to present their bill of exceptions to the chancellor for his approval, or to have had the testimony brought into the record by some of the familiar methods of bringing such testimony before this court. While chancery causes are heard de novo in this court, they are tried upon the same record as was made in the chancery court. The presumption in cases like this is that the missing evidence sustains the decree of the chancellor. We must assume that every question of fact essential under the pleadings to sustain the decree is established by the oral testimony which is not properly brought into the record. State use, etc. v. Leatherwood, 127 Ark. 274, and cases cited. Neither was section 19 of the Practice Act of 1915 complied with. Acts of 1915, p. 1081, Again it is insisted that the decree should be upheld because the road described in the act creating the district is not an established public road and a part of it lies without the proposed district. On the other hand, counsel for the defendants base their right to a reversal of the decree on the ground that the Legislature committed a clerical error in describing the road. Counsel concede that, when tested by the description of the road according to the government survey, the district is void, but they claim that the road is sufficiently described by known monuments, and that these should control over the government survey. It is contended that the testimony omitted from the record would have shown that the description according to the government survey would have fitted another public road as well as the one in question, and that it would have also shown that there were no known monuments that would have established the road attempted to be improved. Section 3 of the act contains the description of the road. It is very lengthy and need not be set out herein. According to the description as there set out, the district is void. It is the duty of courts to ascertain the meaning of an act from the language used by the Legislature. The description of the proposed road according to the government survey is totally at variance with that according to the courses and distances described in the act. There is nothing to indicate which one the Legislature intended to adopt, and the chancery court was correct in holding that the act was void because of the legislative mistake in describing the road to be improved. Jones v. Lawson, 143 Ark. 83. It follows that the decree will be affirmed.