Fletcher v. Simpson

Hart, J. (after stating the facts). Appellees move the court to affirm the decree for the reason that the transcript does not contain all of the evidence in the case upon which the decree of the chancery court was based. A case in equity is heard de novo by the appellate court on the record made below. Under our practice oral evidence introduced in chancery cases may be made a part of the record by having it taken down in writing in open court and by leave filed with the papers in the case, by bill of exceptions, or by reducing the testimony to writing and embodying it as a recital in the record of the decree. Casteel v. Casteel, 38 Ark. 477; Benjamin v. Birmingham, 50 Ark. 433; Jones v. Mitchell, 83 Ark. 77; Beecher v. Beecher, 83 Ark. 424; Rowe v. Allison, 87 Ark. 206; Bradley Lumber Co. v. Hamilton, 109 Ark. 1; Phillips v. Jokische, 117 Ark. 221; Weaver-Dowdy Co. v. Brewer, 129 Ark. 193, and cases cited, and Alston v. Zion, 136 Ark. 376. As shown by the statement of facts, the decree recites, among other things, that it was heard upon the depositions of W. J. Simpson, Robert Raines, W. E. Waddell, Fred A. Snodgress, C. M. Simpson, C. L. Willis, A. G-. Russell, Walter Edwards, and R. M. Fletcher, and upon the exhibits to the deposition of said witnesses filed with their testimony and upon oral explanation by the witnesses, A. G. Russell, R. M. Fletcher and C. M. Simpson to the court of certain of the exhibits filed. As will appear from the eases above cited as well as numerous other decisions of the court, where it is shown on the record that witnesses were examined in open court, this court cannot say how much the opinion of the chancery court was influenced and ought to have been influenced by their testimony. Therefore, a conclusive presumption in favor of the decree must prevail if the evidence sustains the decree, so far as it is possible for a decree based on the complaint to be sustained by the evidence. In the case at bar the decree is within the issues made by the complaint and the answer and cross-complaint. It is therefore responsive to the issues. It appears from the record that on August 20, 1919, the court ordered the stenographer to file the depositions taken at Little Rock with the exhibits thereto. None of the exhibits referred to in these depositions appear in the transcript. W. J. Simpson, a brother of C. M. Simpson, was in charge of the place when Fletcher examined it with a view of purchasing it. He showed Fletcher all the real and personal property on the place except the cotton. He continued in charge of the place for several months after the contract of sale was executed. He had a sales book of the cotton grown on the place which was gathered and sold by him after the contract of purchase was executed. He agreed to file as an exhibit to his deposition a statement of the sale price of all the cotton and cotton seed sold by him together with the expense account against the same. C. L. Willis was the real estate agent who made the sale, and he said that he would file as an exhibit to his deposition a list of all the personal property which was to be embraced in the contract of sale, together with the value thereof. Other exhibits were also to be attached to the depositions. As above stated, none of them appear in the transcript. It will be readily seen that their contents might be very important to a proper determination of the issues. The decree shows at least inferentially that these exhibits were before the chancellor. We refer to that part of the decree which recites that the case was heard upon oral explanation by the witnesses, A. G. Russell, R. M. Fletcher and C. M. Simpson to the court of certain of the exhibits filed. The record of the decree does not recite which of these exhibits were explained by the witnesses. It will be remembered that C. M. Simpson sold the farm of R. M. Fletcher. A. G. Russell was the agent of R. M. Fletcher and took charge of the place within a few months after the contract was executed. The record does not disclose which of these exhibits the court desired to be explained by the witnesses; nor what explanation of them was made by the witnesses. This court cannot know what effect this omitted testimony had or ought to have had upon the chancellor. What was there said by the witnesses might have had, and should have had, a material bearing upon the decision of the chancellor. These witnesses had already testified in the case. Two of them were the principal parties to the suit, and it can be readily seen how their explanation of the exhibits might have caused the chancellor to find the issues in favor of appellees. The exhibits and the explanation of them might have had a very important bearing upon the determination of the issues of fraud and false representations alleged to have been made by C. M. Simpson to R. M. Fletcher. Since all the evidence upon which the decree was rendered has not .been brought into the record and is not now before us, we cannot properly review the evidence for the purpose of ascertaining whether or not the same supports the decree. Therefore the decree must be affirmed.