Hibbard v. Estridge

Opinion op the Court by

Chiep Justice Hobson

on Motion to File Additional Record.

This appeal was taken on March 24, 1913. Since the transcript was filed the appellee has had the sheriff make a return on the order of delivery sued out in the action, and has tendered as an additional record, the sheriff’s return so made, which was filed in the circuit' court on April 22nd. It appears that the sheriff failed to make a return on the writ, and that when the case was tried in the circuit court, no return had been made by him. The case must be tried in this court on the record as it was presented to the circuit court. We have only appellate jurisdiction, and the correctness of the judgment of the circuit court must be determined from the record as it was presented to that court. After the decision of the ease in the circuit court the record cannot be perfected, and new matter put into it for the purposes of an appeal from the judgment of the circuit court. ■ If any part of the record that was before the circuit court is lost or destroyed, it may be supplied, but additions cannot be made to the record of matters not before the circuit court.

The motion to file the additional record is overruled.