Atlas Land Corp. v. Norman

• Decision Date: 11 October 1934
• Citation: 156 So. 885,116 Fla. 800
• Parties: ATLAS LAND CORPORATION et al. v. NORMAN.
• Court: Florida Supreme Court

156 So. 885

116 Fla. 800

ATLAS LAND CORPORATION et al. v. NORMAN.

Florida Supreme Court

October 11, 1934

En Banc.

Suit by John E. Norman against the Atlas Land Corporation and others. From an order appointing a receiver, defendants appeal. On plaintiff's motion to add to record on appeal.

Motion denied. Appeal from Circuit Court, Dade County Uiy O. Thompson, judge.

COUNSEL

John J. Lindsey, of Miami, for appellants.

Emett C. Choate and Marion E. Sibley, both of Miami, for appellee.

OPINION

DAVIS Chief Justice.

This appeal was brought to review an order appointing a receiver on a bill alleged to have been filed ancillary and supplementary to another equity cause pending in the same court wherein John E. Norman is complainant and J. L. Field R. T. Fennell, and A. F. Faulhaver are defendants; same being shown to be chancery case No. 37200.

Appellee has filed a motion in this proceeding, the substance of which is an allegation that in deciding the present case the chancellor had before him, and took into consideration in passing upon the application for appointment of a receiver in this case, all the testimony theretofore taken before him in No. 37200, the alleged main proceeding, as well as the pleadings in the main proceeding, and that the receiver was appointed largely upon the testimony so taken before the chancellor in the main proceeding that disclosed the condition claimed to justify the receivership order now appealed from. The prayer of the motion is that appellants be required to bring up, properly certified as required by our rules, a full and complete transcript of all the testimony evidence, records, and proceedings that were persented to or heard by the chancellor in this supplemental or ancillary proceeding, together with a transcript of the pleadings in the so-called main proceeding.

The rule has been declared in this state to the effect that a court in deciding one case should not undertake judicial notice of what may be contained in the record of another and distinct case, unless it be brought to the attention of the court by being made a part of the record in the case under consideration. See cases cited at page 24, vol. 8, Encyclopedic Digest of Florida Reports.

The circuit court, whether sitting as a court of law or as a court of equity, is a court of record. As such, its judgments or decrees are to be supported, as well as tested, by what its record in the particular case may show, not by what its records at large may disclose. This is necessarily so because, if the rule were otherwise, the correctness of a particular judgment or decree when brought in question on an appeal to an appellate court might be made to depend on some secret knowledge of the judge or chancellor which, as to the parties on the appeal, might amount to a matter in pais in so far as the record of the cause being considered on the appeal is concerned. See Bouguille v. Dede, 9 La. Ann. 292, where the Supreme Court of Louisiana held that an appellate court should not consult nor take judicial notice of the contents of a record not made a part of the record of the case being appealed by being made a part of such record at the hearing or trial in the court of first instance.

Cases must be made up before the court of first instance, and the facts upon which they are based brought up properly in the record of the case being appealed; otherwise a right might be affected by a record previously covered by the dust of the...