Kimball v. Semple
Before: Sawyer
Synopsis
Unaethenticated Statement.— An unauthenticated document, purporting to he a statement on motion for new trial, will he stricken from the transcript on appeal.
Statement in Transcript.—If a statement in the transcript is not authenticated, and the appellant afterwards brings up a certified hut defective statement, he will not be allowed to use the second statement in connection with portions of the first, as the statement in the case.
Transcript on Appeal.—It is the duty of the appellant to furnish the Supreme Court with a complete, clean, properly arranged, and properly authenticated transcript.
Skeleton Statements.—A skeleton statement, containing the words [here insert deed, etc.] ” describing it, omitting, without consent of the parties, the documents thus directed to be inserted in the statement as settled, will be stricken from the transcript on appeal.
Idem.—The proper practice is to engross the statement as settled, including so much of the deeds and other documentary evidence pertaining to the case as is directed to be inserted, and have the authentication of the Judge or attorneys indorsed on the engrossed statement.
Idem.—An appellant cannot leave out of the transcript any portion of the statement as settled, unless on stipulation of the other party.
Engrossing Statement.—A statement ought always to be engrossed where any amendments are allowed, or whore documentary evidence is directed to be inserted, especially when such documents constitute no part of the files or records of the Court.
Filling out Skeleton Statement.—Where documentary evidence is referred to in the statement on motion for a new trial, and directed to bo inserted, the appellant cannot, without the assent of the other party, insert copies of the same in the transcript on appeal, unless the statement has been engrossed as settled, and afterwards authenticated, or unless the originals are on the files of the Court, or constitute a part of its records, so that they can be authenticated as a part of such record by the certificate of the Clerk.
Deeds in a Statement.— It is seldom necessary to insert an entire deed in a statement. When the deed is regular, and no question is made on it, it is sufficient to say that a deed was introduced from A. to B., showing that A.'s title had vested in B.
Immaterial Matter in Transcript.—The place to object to immaterial matter in a statement is when it is made up and settled. If immaterial matter is introduced, and that fact is made to appear in the record, the party insisting on its introduction will be taxed with the costs of the immaterial matter.
By the Court, Sawyer, J.: When this case was finally disposed of, we had no time to reduce the grounds of the decision to writing. We think, however, they should be stated, in order that there may be no occasion for like action upon a similar record in future.
At the October term the appeal from the judgment was dismissed, on the ground that it was not taken in time. The appeal from the order denying a new trial only remained. As to this appeal, the respondent moved to strike out all of appellant’s proceedings on motion for new trial, on the ground that it did not appear that any statement had ever been made or filed within the time allowed by law, or at any time; or that any motion for new trial had ever been filed; or that the document called a statement in the record had ever been [659]agreed to by the parties, or settled by the Judge. It was manifest from an inspection of the transcript, that all the objections were well founded, and that there was no record here upon which the appellant was entitled to be heard. It appeared to be simply a certified copy of such portions of an unauthenticated document on file in the Court below as the appellant chose to bring up. The appellant, upon affidavit showing that proceedings had been regularly taken to obtain a new trial, and that a statement on motion for new trial had been prepared, duly settled, certified by the Judge and filed, applied for an order under Rule XII, requiring the Clerk of the District Court to certify to this Court such evidence of the authentication of the statement upon motion for new trial as might be of record in the case, and especially the certificate of the District Judge that he had settled and allowed the statement, or any other paper on record “ authenticating said statement on appeal.” After a strenuous opposition by the respondent, on the ground that there was not a mere diminution of the record, but that appellant had utterly failed to bring up any record upon which he was entitled to be heard, the order was granted and the cause continued for the term. The Clerk, following the requirements of the writ, returned only the evidence of the service of notice of motion for new trial, the filing of statement and the authentication of the statement by the District Judge, which authentication is in the following words: “ Indorsements on statement: ‘ The foregoing statement has been allowed by me and is correct. May 26, 1866. I. S. Belcher, District Judge.’ ‘Filed May 26, 1866.’ ” The Clerk certifies “ that the above and foregoing is a full, true and correct copy of the original certificate of the District Judge allowing the statement on motion for new trial * * * as the same now remains of record and on file in the office of said Court.” As the certificate of allowance by the Judge was thus certified up separately, the inference would perhaps be—if we were permitted to act upon inferences of the kind—that it was indorsed on the document before contained in the transcript purporting to be
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