Giffin v. Supreme Lodge of Fraternal Brotherhood

STURTEVANT, J.

The plaintiff sued the defendant to recover a judgment for moneys' alleged to be due under a benefit certificate alleged to have been issued by the defendant. The latter appeared and answered. Later a stipulation of facts was executed. A trial was had thereon before the court sitting without a jury. The court caused a judgment to be entered which was in favor of the plain

[31]

tiff. The defendant appealed and brought up what purports to be the judgment-roll, including a purported copy of the stipulation. The defendant filed its brief June 7, 1928, and therein it presented many facts not shown by the stipulation. On June 27, 1928, the respondent filed her brief and therein made one point—the defendant had failed to follow the method prescribed by sections 953a, 953b, 953c, of the Code of Civil Procedure. She also made a motion to affirm the judgment. The presentation of the appeal and of. the motion came on for hearing August 2, 1928. At the same time the defendant suggested a diminution of the record. The motion and suggestion were heard. The suggestion of the diminution of the record was accepted and the clerk of the trial court was directed to certify the absent documents. The motion to affirm was denied. Permission was granted to file additional briefs. Thereafter, August 13, 1928, the clerk of the trial court sent to the clerk of this court four documents marked exhibit “A,” exhibit “B,” exhibit “C,” and exhibit “D.” No one is certified in any manner, nor does any certificate accompany the lot. On August 16, 1928, the respondent filed another brief in which she again attacked the record as not conforming to the law and in which for the first time she replied to the points made by the defendant. On September 4, 1928, the appellant filed another brief in which it contented itself with the assertion “the stipulation of fact having been adopted by the trial court as its findings of fact, it thereby became a part of the judgment foil and was properly before the court in the clerk’s transcript.” True, but the assertion does not aid the defendant. The clerk’s transcript contains what purports to be the stipulation of facts. But that stipulation refers to four several documents as being attached to it. Whereas nothing is attached to the copy of it which is inserted in the transcript and there is nothing before us showing that any document was attached to the original stipulation or if it was, what it was. In this certificate to the transcript the clerk certifies that the transcript contains “a full, true, and correct copy of the original: . . . stipulation of facts . . . and of the whole of such originals. ...” Now, the exhibits above referred to are not certified, are not authenticated by any affidavit, and they do not break down the force of the clerk’s certificate just quoted. He sends us exhibits which are numbered 1, 2, 3,