Merchants National Bank v. Grunthal

Citations

• 38 Fla. 93

Syllabus

<p>APPELLATE PRACTICE — OFFICE OF BILL OF EXCEPTIONS — ATTACHMENT PROCEEDINGS ARE PLEADIN GS — 'WRIT OF ERROR DISMISSED WHEN ERRORS ASSIGNED HAYE NO BASIS IN RECORD — DIMINUTION OF RECORD — WHEN TO BE SUGGESTED.</p> <p>1. The statutory affidavit and bond upon which an attachment issues, and the defendant’s traverse affidavit, when there is a contest as to the facts, are jurisdictional, and constitute the statutory pleadings in such cases; and, when brought into question in an appellate court, constitute the record proper of the case, and have no place in a bill of exceptions, whose sole office is to evidence to an appellate court matters purely in pais.</p> <p>2. The only evidence for an appellate court as to matters that appear of record is the record proper, duly certified by the Clerk of the Court who is the custodian of them; and, as to matters not of record, or m pais, the judge’s certificate to a bill of exceptions containing them is the only evidence. Where matters of record are set forth or exhibited only in and by a bill of exceptions certified by the judge, it furnishes no evidence of such matters to an appellate court upon which it can act, where the record proper, certified by the Clerk of the Court below, does not contain them.</p> <p>3. Where it is apparent from a transcript of record brought to an appellate court by writ of error that none of the matters questioned by the errors assigned are so set forth and evidenced by such transcript as that such court can properly recognize and consider them, the writ of error should be dismissed.</p> <p>4. Under rule 15 of the Rules of Practice of the Supreme Court'of Florida no suggestion of diminution of the record will be allowed to be made, without the consent of both parties, after the abstract or statement of the cause has been agreed upon by the parties, or after the opposing statement has been filed, in case of disagreement.</p>