Siebe v. Joshua Hendy Machine Works

Hayne, C. — This was an action upon a promissory-note. The trial court gave judgment for the plaintiffs,, and the defendant appeals.-

[391]We do not think that, upon the record before us, the appellate court can consider the question whether the evidence supports the findings of fact. The record provided by statute for bringing up the evidence is a bill of exceptions, or statement, to be served upon the successful party, and settled and certified by the judge. There is no bill of exceptions, or statement, in the transcript. It is plain, therefore, that, unless there is some equivalent or substitute for the statutory record, the evidence is not before us. What is relied on as such equivalent consists of the following proceedings: After the appeal was taken, appellant filed in the trial court a notice specifying certain points that it would rely on upon the appeal. This document did not contain any of the evidence given at the trial. It does not appear to have been even served upon the respondent, though we suppose that it was. Nothing further seems to have been done in the trial court. The transcript filed in the .appellate court contains a copy of this notice, copies of the appellant’s articles of incorporation and by-laws, and a stipulation, which states, in substance, that the copies mentioned are correct copies, and that the articles of incorporation and by-laws were introduced in evidence at the trial. This is all that the stipulation states in relation to the matter in question. It does not state that no other evidence was introduced at the trial. Nor does it purport to waive the record prescribed by law, or to provide that the evidence may be reviewed upon the papers mentioned. The mere statement that certain copies are “correct” is of no more force than the usual certificate of the clerk in authentication of the transcript. ( Wetherbee v. Carroll, 33 Cal. 549.) And the mere admission that certain documents were introduced in evidence at the trial does not show that there was no other evidence. For all that the court can know to the contrary, other by-laws, subsequently adopted, may have been introduced in evidence. While a stipulation may be so [392]framed as to dispense with the record provided by law, there ought to be something which would enable the court to say, with some reasonable degree of ccrtaint; that such was the intention. The respondent objects that there is no record upon which the evidence can be reviewed, and we think that the objection must be sustained. This leaves the appeal to be heard upon the findings. Two questions arise upon the findings.