Watts v. Kilburn ( 1849 )

By the Court. —

Lumpkin, J.

delivering the opinion.

[3.] The rule of the Superior Courts, requiring a brief of the testimony in the cause, to be filed by the party applying for a new trial, under the revision and approval of the Court, was made to protect the rights of the parties to such rule. But no objection was taken in the Court below, to the application for a new trial, for want of compliance with this rule. We are bound to presume, therefore, either that the rule was complied with, or else, that its provisions were waived by the defendant in error. He now objects, however, that no such brief comes up with the bill of exceptions; none such is required, in order to a hearing of the cause before this Court. We require, it is true, that a brief of the oral and a copy of the written evidence, adduced in the Court below, shall be embodied in the bill of exceptions; and that has been done.

In the case of Grady vs. Hightower, (1 Kelly, 252,) the objection was taken to the hearing of the motion for a new trial, because there was no brief of the testimony filed when the application was made; and the exception being overruled by the Court, it brought up the question directly for review. But here, no such point was made on the motion for a new trial in the Court below ; of course, it cannot be raised here now.

[2.] We will dispose of the other two grounds together, viz : that all the testimony is not attached, necessary to a proper decision of the cause by this Court; and especially, that no copy of the bill of sale, from Turrentine to Watts, accompanies the record.

This Court will hear no cause, until a complete record shall be filed, containing within itself, without references, aliunde, all the papers, exhibits, depositions, and other proceedings, which - are necessary to a proper determination in this Court. We do not perceive that any material matter or thing is wanting. The time and place of the execution of the bill of sale, together with the consideration, are testified to. It is not indispensable, therefore, that the original, or a copy, should be before us.

Let the cause be argued on the merits.