Manry v. Phœnix Mutual Life Insurance ( 1930 )

ON MOTION ROR REHEARING.

The plaintiff in error, in a motion for a rehearing, has requested this court to order that a copy brief of evidence be sent up, and to consider the case in the light of the evidence as it appears in the brief of evidence. In the motion for rehearing it is stated: “In the decision rendered in this case, plaintiff in error respectfully contends that this honorable court has discussed and ruled on evidence that is not in the record of this ease, as to no funds being in the bank to pay the check tendered. There is no brief of evidence in the record, and therefore the court has gone outside of the record on file in rendering its decision in said case." The statement of the plaintiff , in error that the court has gone outside of the record and “has discussed and ruled on evidence that is not in the record” is not correct where this court treated, to all intents and purposes, as part of the record here presented his own version as to the evideuce adduced upon the trial. For some reason the plaintiff in error failed to specify the brief of evidence as a part of the record, but since this court adopted his own version of the evidence, he certainly can not complain, in the absence of a brief of the evidence in the record, that this court for the purpose of the decision adopted his version of the evidence as a correct statement of the evidence adduced upon the trial. The plaintiff in error does not deny that his version of the evidence, which the court adopted, was correct. He does not deny that it appeared from the evidence adduced on the trial that there was not sufficient funds in the bank to cover the check which the plaintiff in error had tendered the counsel for the defendant in error. The quotation just made from his motion is not equivalent to such a denial. It is merely an allegation that this court, when it assumed that his version of the evidence was correct, went outside of the record because the record did not disclose the evidence adduced upon the trial. This court has the power to order a copy of the brief of the evidence sent up as part of the record, and would do so if the court were satisfied that the brief of evidence would disclose a state of facts with reference to the nature of the evidence adduced upon the trial that is different from what this court, in reliance upon the brief of the plaintiff in error, assumed to be the correct .version of the evidence. There being no contention in the motion for a rehearing that this court has in its decision misstated the evidence, and since none of the grounds of the motion for rehearing are, in the opinion of this court, meritorious, the motion for a rehearing and for an order of the court that the brief of evidence be sent up is denied.

Rehearing denied.

Jenkins, P. J., and Bell, J., concur.