Stubbs v. Central Bank , 7 Ga. 258 ( 1849 )

By the Court. —

Lumpkin, J.

delivering the opinion.

[1.] A preliminary motion is submitted in this case, which if well founded, must dispose of the writ of error. It is, that the bill of exceptions does not embrace the material facts upon which the judgment of the Court below was rendered, and that it is too vague and uncertain to enable this Court to review the decision of the Court below, and determine upon it understandingly. It contains no statement of the nature of the action, the defence set up, nor any brief of the oral, or copy of the written evidence adduced on the trial, or any portion thereof.

The Court below is presumed to decide correctly until the reverse is shown; and to make it error to admit or exclude testimony, the bill of exceptions must show its relevancy and materiality, and the injury done to the party complaining by the decision thereon. Tested by these rules, we find this record fatally defective. Take, for example, the first error complained of, i. e. that the Court held, that commissions to take interrogatories might issue in blank, in regard to the names of the commissioners. Conceding, for the sake of the objection, that the opinion was wrong, still it does not appear that any such interrogatories were read on the trial.

[2.] And the decision of the Court, overruling objections to evidence, cannot be assigned for error, unless it appear that the evidence was, in fact, given to the Jury. Thomas vs. Tanner, 6 Monr. 52.

Again, it is alleged that the Court erred in refusing to allow the defendants to prove the improper and corrupt conduct of one of the. commissioners who acted in taking interrogatories for the plaintiff,, not offered in evidence, in order to discredit and reject other interrogatories read to the Jury, and taken by the same commissioner.

The difficulty here is, that the record does not disclose what the evidence was, which is charged to have been thus illegally admit, ted. And where a witness is asked an improper question, and the objection to it being overruled, it is answered, and the record does not show what the answer is, and that it is prejudicial to the objector, the judgment will not be reversed. King vs. Mimms, 7 Dana, 26.

[3.] If the admission of improper evidence is assigned for error, the substance of it must be set out, for if it was not material, the rejection is not ground of reversal. Farriday vs. Seiser, 4 How. Miss. 506. Skortz vs. Unangst, 3 Serg. & Watts, 45. The admission of illegal testimony to a point upon which no evidence is necessary, is not error. Foster vs. Nowlin, 4 Missouri R. 18. The overruling of an objection to a leading question, put by the plaintiff to one of his witnesses, cannot be assigned for error, unless the record show that the defendant was injured by the answer of the witness. Culbertson vs. Stanley, 6 Blackf. 67.

These authorities, as well as the reason of the thing, show, conclusively, the necessity of stating, in the bill of exceptions, the substance of the testimony which is alleged to have been improperly allowed, in order that the appellate Court may decide intelligibly in the matter or thing complained of.

[4.] There are other grounds in the bill of exceptions, to all of which one general observation is applicable, to wit: that the points intended to be raised for revision, are not set out with sufficient fulness and certainty to enable this Court to decide, without danger of mistake, the exceptions reserved. All of them but the 6th and last, relate to the acts and sayings of P. P. Bethea, one of the former owners of the note in controversy; but what those sayings were, or where made, is not stated. The inference from the record is, that they were after the paper went out of his possession ; and if so, of course they were properly excluded, and, prima facie, the judgment of the Court below is right. At any rate, there is not enough before us to justify us in saying that it was wrong; and we are not at liberty to conjecture that there may have been contradictory proof as to whether or not Bethea was in possession of the note at the time when these acts and declarations took place. We can indulge in no presumption against the regularity of the proceedings below. The party who challenges the legality of the proceedings of inferior tribunals, must prove the error by the record.

• As to the 6th exception, that the Court erred in maintaining that the Central Bank of Georgia had the right to release Thomas J. Warthen, who was second indorser of P. P. Bethea, on the note discounted in said bank, from all liability on said paper, and that said discharge did not affect the competency or credibility of the testimony of the witness, the same remarks apply which were made to the second exception. It does not appear what the testimony of this witness was — whether it was material or otherwise — whether it was prejudicial to the defendant or not.

We have assumed, throughout this opinion, that the testimony appended to the record constituted no part of the bill of exceptions, and consequently is not before us. The bill of exceptions was certified and signed on the 28th of March, 1849. Notice was given thereof, as required by the Act, on the 2d of April ensuing; and on the 11th of April, the papers were filed in the Clerk’s office, and on the same day, a brief of the testimony was examined and allowed by the Judge, and also filed in office. The opposite party had no notice of the testimony, which was annexed nine days after notice was served of the signing of the bill of exceptions. Of course'it must be rejected.

[5.] And I would take occasion to remark, that a practice is growing up, of attaching the testimony to the bill of exceptions, with reference thereto as exhibits; whereas, the rule requires that it shall be “ embodied in” the bill of exceptions. And seeing the liability to abuse, which a departure may occasion, this regulation will be strictly enforced. Certainly every part and parcel of the bill of exceptions should receive the imprimatur or authoritative stamp of the presiding Judge.

[6.] Again, it is rather irregular to certify, as in this case, that the bill of exceptions tendered, is examined and allowed as “ a part of the proceedings.” The bill of exceptions should not only contain the truth as far as they go, but they should state the whole truth, which is necessary to a full and proper understanding of the cause; and without this, the presiding Judge would be justified in refusing to certify and sign them, as true and consistent with ' what has transpired in the cause before him. ¥e are compelled to hear and determine causes upon matters contained in the record, and not otherwise; and the responsibility is devolved, therefore, by the law, upon the presiding Judge, to see to it that the record is complete. For whenever it appears from the bill of exceptions, that deeds, records, papers or other testimony, written or oral, material to a sufficient understanding of the case, were given in evidence in the Court below, and these documents, or this verbal proof, are not incorporated into and made a part of the bill of exceptions, and duly certified and signed as such, within the time prescribed by the Statute, this Court will affirm the judgment. Barton vs. Wells, 5 Whart. 225.

If parties, then, have an interest to correct any errors in the judgments of the Circuit Courts, they can place themselves in a condition to have them examined, by pursuing the course we have indicated; but there being nothing in this transcript to warrant the writ of error, as it now is, and as it cannot be amended or supplied, the writ of error must be dismissed.