Reynolds v. Wilkinson

Citations

• 119 Miss. 590
• 81 So. 278

Syllabus

<p>1. Appeal An» Ebbob. Remedy to correct transcript of record. Cer-tiorari.</p> <p>A writ of certiorari to the clerk of the court belo-w to send up an alleged missing part of the record, is the proper procedure for enabling the supreme court to determine whether the clerk has omitted from the transcript of the record a necessary part thereof, which is on file in the clerk’s office, and upon the clerk’s reply to such, writ without compliance with the order, the court may determine whether the certified transcript is defective.</p> <p>2. Appeal and Error. Review. Assignment relating to evidence. Necessity of transcript of evidence.</p> <p>In the absence of a transcript of the evidence, the supreme court cannot, on the submission of a cause for trial on its merits, consider any assignment of error, the determination of whicti will require an examination of the evidence on which the judgment appealed from was rendered in the court below.</p> <p>On the Merits.</p> <p>3. Appeal and Error. Review of decree. ' Absence of proof from the record. Effect.</p> <p>Where a cause was tried in the court below on bill, answer and proof, but the evidence introduced was not preserved, the decree of the court below must be affirmed if it can be supported by any evidence which could have been introduced under the pleadings.</p> <p>4. Pleading. Admissions by failure to deny. Bale for taxes. Validity. Rate of sale. Statute.</p> <p>Where a bill seeking partition of lands alleged and the answer did not deny, that the sale to defendants for taxes was made on the wrong day and that the list of lands struck off to the state was not filed as the law directs, the court should have held that' the sale was void under Code 1871, section 1698, now Code 1906, section 2933 (Hemingway’s Code, section 5268) since under Code 1906, section 584 (Hemingway’s Code, section 344), the allegations of the bill where not denied must be accepted as true without reference to the evidence.</p> <p>5. Remainders. Limi