Curry v. Osborne
| Decision Date | 17 January 1918 |
| Citation | 75 Fla. 85,77 So. 616 |
| Parties | CURRY, Acting Chief of Police v. OSBORNE. |
| Court | Florida Supreme Court |
Habeas corpus by C. E. Osborne against W. B. Curry, acting Chief of Police of Miami, Fla. Judgment for petitioner, and defendant brings error, and applies to the Supreme Court for a writ of certiorari to perfect a record. Application denied.
Syllabus by the Court
A bill of exceptions is authenticated by the trial judge, and it cannot be amended by certiorari in the appellate court.
COUNSEL John C. Gramling and William P. Smith, both of Miami, for plaintiff in error.
Atkinson & Burdine and Bart A. Railey, all of Miami, for defendant in error.
Defendant in error presents an affidavit purporting to be a motion for writ of certiorari to perfect the record in this cause, which is here on writ of error in habeas corpus proceedings, stating that certain testimony of a witness in the habeas corpus proceedings was omitted from the bill of exceptions as made up, and attaches a certificate of the circuit judge:
'That the full testimony of William B. Moore contained on the pages attached hereto was not incorporated in the bill of exceptions presented to me in the case of State of Florida ex rel. C. E. Osborne v. W. B. Curry, Acting Chief of Police of Miami, Fla. I do now hereby certify that the bill of exceptions together with this additional testimony of Mr. William B. Moore contains all the evidence introduced at the trial in the above cause.'
There is also attached three pages of what purports to be testimony as referred to in the affidavit and in the certificate of the judge. If these papers may be regarded as an application for a certiorari in diminution proceedings, they are insufficient, since it is not shown that the transcript on file here is not a correct copy of the record in the circuit court.
A bill of exceptions is authenticated by the trial judge, and it cannot be amended by certiorari in the appellate court. See Glaser v. Hackett, 38 Fla. 84, 20 So. 820; Mizell v. Travelers' Ins. Co., 40 Fla. 148, 24 So. 148; Weeks v. Hays, 55 Fla. 370, 45 So. 987.
If a bill of exceptions is subject to amendment, such amendment should be made in the trial court. If an amendment to a bill of exceptions becomes a part thereof and a part of the record in the cause, and it is erroneously omitted from the transcript brought to the appellate court on writ of error,...
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