Blake v. Lee

Gilfillan, C. J. In this action, after a trial before a jury, and verdict for plaintiff, a ease was settled by the judge. It appears from it that written instruments offered by plaintiff, and objected to by defendants, were received in evidence, and that written instruments offered by the defendants were, on the plaintiff’s objection, excluded. None of these are incorporated in or attached to the settled case. In lieu of that, however, the appellants have procured the clerk to forward here, as part of his return, copies of instruments, with his certificate that they are copies of the instruments so offered and received, or offered and excluded. That is not the way to bring before this court documents used or offered on a trial. It is for the judge who tries a cause, and not for the clerk, to settle and certify what takes place on the trial, and what evidence, documentary or otherwise, is received or offered. To bring here the contents of documents so received or offered, they must be made a part of the settled case, which can he done only by their being inserted in or attached (with proper reference to them in a body of the case) to the case by the judge, or by his direction, so that his certificate shall include them. On motion of respondent, the said copies of instruments are struck from the return. As the assignments„of error cannot be considered without having before us the contents of the instruments so received, or [479] offered and rejected, and they are not here, there is nothing to sustain such assignments of error, and the presumption in favor of regularity must prevail. Order affirmed.