Jefferson v. Sadler , 155 Ala. 537 ( 1908 )

DENSON, J.

The bill in this cause was filed for the redemption of lauds from two mortgages. Upon the submission of the cause on the pleadings and (he proof, the chancellor rendered a final decree dismissing the bill. From that decree the complainants appealed, and have assigned it as error.

The certificate of the register shows affirmatively that a material part of the testimony upon which the cause was submitted and determined is not embraced in the record. The certificate in this respect is as follows: “* * * Do hereby certify that the foregoing pages, from 1 to 145, inclusive, contain a full and complete transcript (except the testimony of (x. B. Johnston, which original testimony has been ordered sent direct to the clerk of the Supreme Court under rule 27 of the rules of practice) of the record and proceedings of the said chancery court.” etc. An examination of the record also shows tlial the testimony of Johnston was a part of the testimony upon which the respondents submitted the cause for final decree, and that it does not appear in the record. There appears in the record an order of the chancellor, made on motion of the complainants, and in pursuance of rule 27 of the rules of practice of the Supreme Court, requiring the register to forward, with the transcript in the cause, “the origina] evidence of the witness G. B. Johnston, as taken down and submitted in the cause.”

We have found, accompanying the transcript, what purport to be the original depositions of G. B. Johnston. These, however are not only not set out in the record, but there is not even a certificate of the register to show that they are the original depositions, or the ones sent up in pursuance of the order made by the chancellor. It was settled many years ago, by the decisions of this, court, that the rule of practice does not authorize the omission from the transcript of original papers or documents that have been ordered sent up under its provisions. “They should be copied there, in all cases, where the}1' constitute material testimony, whether the originals are transmitted to’ the appellate court or not.”-— Southern Railway Co. v. Leard, 146 Ala. 349, 361, 362, and cases cited on page 362, 39 South. 449, 454. These depositions, not being embraced in the record, cannot be here considered in their original form. Therefore, it affirmatively appearing that there was evidence before the chancery court which is not set out in the record, according to our former decision*, we hold that we cannot review the conclusions of the chancellor on the facts.' — Wood v. Wood, 119 Ala. 183, 185, 24 South. 841.

Let the decree of the chancellor, dismissing the bill, be affirmed.

Tyson, C. J., and Simpson and Anderson, JJ., concur.