Opinion
37301
January 13, 1938
Present, Campbell, C.J., and Holt, Gregory, Browning, Eggleston and Spratley, JJ.
1. APPEAL AND ERROR — Record — Failure to Identify or Make Part of Record Evidence Taken Ore Tenus — Dismissal — Case at Bar. — In the instant case a motion was made to dismiss from the docket because a large part of the evidence was taken ore tenus in open court before the judge, in chancery, and there was nothing in the nature of a certificate or bill of exceptions, signed by him, identifying the evidence or making it a part of the record.
Held: That identifying the evidence or making it a part of the record was made mandatory by sections 6252 and 6253 of the Code of 1936 and Rule XXIV of the Supreme Court of Appeals, and hence the appeal must be dismissed.
2. APPEAL AND ERROR — Record — Testimony Introduced Ore Tenus in Chancery Suit — How Made Part of Record. — Testimony introduced ore tenus before a chancery court is no more a part of the record than is evidence introduced in a common-law case, unless it is reduced to writing and made a part of the record, either by decree duly entered or by a certificate signed by the judge earmarking and identifying it.
3. APPEAL AND ERROR — Record — Failure to Identify of Make Part of Record Evidence Taken Ore Tenus — Recital in Formal Part of Decree — Case at Bar. — In the instant case a motion was made to dismiss from the docket because a large part of the evidence was taken ore tenus in open court before the judge, in chancery, and there was nothing in the nature of a certificate or bill of exceptions, signed by him, identifying the evidence or making it a part of the record. Appellant, in answer to the motion, cited to the Supreme Court of Appeals the decree from which the appeal was allowed, the formal part of which brought on the case with the usual recital of the various steps taken, including the depositions of witnesses taken on behalf of complainant and respondents, "this day filed."
Held: That this did not take the place of the certificate or bill of exceptions identifying the evidence or making it a part of the record.
4. APPEAL AND ERROR — Record — Failure to Identify or Make Part of Record Evidence Taken Ore Tenus — Requiring Production of Record in Lower Court — Case at Bar. — In the instant case a motion was made to dismiss from the docket because a large part of the evidence was taken ore tenus in open court before the judge, in chancery, and there was nothing in the nature of a certificate or bill of exceptions, signed by him, identifying the evidence or making it a part of the record. The provisions of section 6345 of the Code of 1936, empowering the Supreme Court of Appeals to award a writ of certiorari to have brought before it, when part of a record is omitted, the whole or any part of such record, were evoked by appellant to the end that the court might require the record in the lower court to be produced for the purpose of showing that the testimony in the case was marked, "Filed, J.L.M., March 24, 1936."
Held: That the effect of requiring the record to be produced would be adding to the record, by the Supreme Court of Appeals, in derogation of sections 6252 and 6253 of the Code of 1936 and Rule XXIV of the Supreme Court of Appeals, upon an ex parte assertion that the alleged omitted matter existed.
Appeal from a decree of the Circuit Court of Southampton county. Hon. James L. McLemore, judge presiding.
Dismissed.
The opinion states the case.
Guy T. Horner, John C. Davis and Raymond B. Bridgers, for the appellant.
James G. Martin Son and J. M. Britt, for the appellees.
At the threshold of this case we are met with a motion to dismiss it from the docket because a large part of the evidence was taken ore tenus in open court before the judge, in chancery, and there is nothing in the form of a certificate or bill of exceptions, signed by him, identifying the evidence or making it a part of the record. That this must be done is made mandatory by section 6252 of the Code, as amended by Acts 1930, ch. 246, and section 6253 of the Code as amended by Acts 1934, ch. 90, and Rule XXIV of this court.
The following cases are controlling as to this point: Nethers v. Nethers, 160 Va. 335, 168 S.E. 428; Ross Cutter and Silo Co. v. Rutherford, 157 Va. 674, 685, 161 S.E. 898; Lawrence Son, Inc. v. Merkel, 167 Va. 297, 189 S.E. 162.
In the case of Nethers v. Nethers, supra, it was said: "In Ross Cutter and Silo Co. v. Rutherford, 157 Va. 674, 161 S.E. 898, it was held that testimony introduced ore tenus before a chancery court is no more a part of the record than is evidence introduced in a common law case, unless it is reduced to writing and made a part of the record, either by decree duly entered or by certificate signed by the judge earmarking and identifying it."
The defendant, in answer to the motion to dismiss the appeal, cites to this court the decree from which the appeal was allowed. The formal part of the decree brings on the case with the usual recital of the various steps taken, which includes the depositions of witnesses taken on behalf of the complainant and respondents, "this day filed."
We do not think that this supplies the absent requirement referred to.
The provisions of section 6345 of the Code are evoked by the defendant to the end that this court may require the record in the lower court to be here produced for the purpose of showing that the testimony in this case was marked, "Filed, J.L.M., March 24, 1936."
The effect of this would be adding to the record, by this court, in derogation of the statutes above referred to and the rule of this court, cited, and the decisions pointed out, upon an ex parte assertion that the alleged omitted matter exists.
This we cannot do and we have no volition in the matter.
The appeal must be dismissed as having been improvidently awarded.
Dismissed.