Reynolds v. Wilkinson

Smith C. J., delivered the opinion of the court. The certificate of the clerk below to the record in this case is in the usual form, setting forth that it contains a true and correct transcript of the proceedings as the same now appears on file in his office. The final decree sets forth that the cause was heard on the pleadings and proof, but the record contains only the pleadings, an exhibit thereto, and the court’s decree. This motion filed by appellees alleges that on the trial in the court below evidence both documentary and oral was introduced, and that the oral evidence was not preserved by a bill of exceptions or otherwise, and prays that an order be entered here correcting the clerk’s certificate so as to make it read as follows: “I, Gr. M. Causey, clerk of the chancery court of said county and state, do hereby certify that the within and foregoing pages contain a true and correct transcript of a part of the proceedings in the matter of Mrs. Viola Reynolds et al. v. T. J. Wilkinson et al. had and held before the honorable chancery court of Amite county, Mississippi, and which proceedings are now on file in this office.” [601] Conceding for the. sake of the argument that the certificate of the clerk Below to a transcript of a record filed By him in this court may be corrected without his consent on a motion of the character here under consideration, the certificate complained of is in proper form, and is the only certificate the clerk can make, unless he has omitted from the transcript a part of the record as it appears on file in his office. The procedure for enabling the court to determine whether a clerk below has ommitted from the transcript of the record in a case appealed to this court a necessary part thereof, and which is "on file in his office, is by a writ of certiorari directing him to send up the alleged missing parts, and upon his reply thereto without a compliance with the order therein contained the court can determine whether or not the transcript of the record as certified by the clerk is in fact defective, and, if so, whether he can remedy the deFoct. When the cause is submitted to us for trial on he merits, we cannot, of course, in the absence of a transcript thereof, consider any assignment of error the determination of which will require an examination of the evidence on which the decree in the court below was rendered. Overruled.