Brown v. Sutton

• Decision Date: 04 March 1929
• Docket Number: 27719
• Citation: 120 So. 820,158 Miss. 73
• Court: Mississippi Supreme Court
• Parties: BROWN v. SUTTON

120 So. 820

158 Miss. 73

BROWN v. SUTTON

No. 27719

Supreme Court of Mississippi

March 4, 1929

Division B

1. APPEAL AND ERROR. Certiorari will not be granted to bring up original verdict, where judgment in record recites verdict rendered in case; recitals of judgment are conclusive on appellate court.

Where the judgment of the court contained in the record recites the verdict of the jury rendered in the case, the court will not grant a certiorari to bring up the original verdict, as the recitals of the judgment are conclusive on this court.

2. APPEAL AND ERROR. Appellate court cannot make record in court below nor change record so as to correct mistakes noted therein;

appellate court accepts records made in court below as being the records there made.

The supreme court has not the jurisdiction nor the power to make a record in the court below, nor to change the record so as to correct any mistakes noted therein. The court below should hear motions to correct records in that court. This court accepts records made in the court below as being the records there made, and judges as to whether there was error in the proceedings by the records there made.

3. APPEAL AND ERROR. Ex parte certificate by circuit judge after adjournment as to recollections of contents of instruction cannot be considered in appellate court; trial court must, if record is erroneous, make all corrections by appropriate proceedings on notice and hearing.

A sworn certificate made ex parte by the circuit judge after the adjournment of court as to the judge's recollections of the contents of an instruction when presented to him, cannot be considered in this court, but if the record is erroneous the circuit court must, by appropriate proceedings, make all corrections of its records, and these corrections should be made on notice and a hearing.

HON. T E. PEGRAM, Judge.

APPEAL from circuit court of Calhoun county, HON. T. E. PEGRAM Judge.

Action between Watson Brown and Oma Rea Sutton. Judgment for the latter, and the former appeals. On motion for certiorari to bring up original verdict and to correct an instruction. Motion overruled.

Motion overruled.

J. H. Ford, of Houston, for appellant.

The supreme court cannot refer to affidavits and other documents even though it be that of the judge who presided over the court below to ascertain the facts but these facts must be ascertained by this court from the record itself. The affidavit of the judge could in no sense be considered as any part of the record on appeal sent up from the court below as required by law.

McKeigney & Latham, of Eupora, for appellee.

If what the trial judge says about the instruction, as shown by his sworn statement exhibited with the suggestion of diminution of the record is worthless on this hearing, then something will be permitted to stand here which is not the record made in the court below.

Should suggestion of diminution of record not be the correct method to reach the trouble with the instruction of which we complain, the transcript showing an instruction which never had any existence in fact, then we trust that it may not be improper for us to suggest that under Rule 32 of this court, a proper order may be made so that the court may look into the matter thoroughly, and such order may include the bringing up of the instruction itself and also the paper (the declaration in the case) on which the jury wrote the verdict.

OPINION

Ethridge, P. J.

The appellee suggests a diminution of the record and asks for certiorari to bring up the original verdict returned by the jury in the court below, and also to correct an instruction contained in the record alleged to be incorrect in that blank spaces had been filled in after giving of the same, and that the court adjourned before the discovery of such fact.

As to the verdict of the jury, an inspection of the record shows that the judgment recites the verdict of the jury. This recital in the judgment is conclusive upon us as to what the verdict is, and we are bound by the record made in the court below upon that proposition. Should the record in that case contain two conflicting verdicts, the verdict recited in the judgment will be controlling and conclusive upon this court.

It would serve no useful purpose to issue a certiorari to bring up the verdict written upon the back of the declaration as alleged, because, if it be the same, it is in the record already, and if it was different from that recited in the judgment, the judgment would control.

As...