Case v. Ham

The opinion of the court was delivered by

Scott, J.

— This is an equity case. The respondents move to strike the purported statement of facts and certain testimony sent up with the transcript, on the grounds that the statement is insufficient under the law, and was not served on the respondents as required by statute. It appears that a certain document, which is but a recital of various steps taken in the action, was served on the respondents as a statement of facts. It contained none of the testimony which had been taken, but appellants maintain that it was a sufficient statement because it contains this reference:

“The entire record in the case, the testimony taken therein, and the exhibits therein filed, are hereby expressly referred to and made a part of this statement. ’ ’

The testimony was taken by a shorthand reporter, and it was claimed by appellants that it was transcribed and delivered to the clerk of the lower court, and was by him sent up with the transcript to this court. Certain testimony appears in the record which bears no evidence on its face of having been filed in the case, and the only thing to show that it is a part of the proceedings is the presumption arising from the fact that it is entitled in the cause, and was sent up with the transcript. There is, however, no proof or certificate of any kind showing that it is all the testimony taken in said cause, and it is admitted that it was not served on the respondents. It is not identified in any manner excepting as stated, and the respondents’ motion to strike the same must prevail. And, it further appearing that no question is raised excepting such as depends upon the testimony taken in the cause, the judgment is affirmed.

Dunbar, C. J., and Hoyt, Anders and Stiles, JJ., concur.