Martin v. McGraw

• Decision Date: 03 February 1964
• Docket Number: No. 42929,42929
• Citation: 249 Miss. 334,160 So.2d 89
• Parties: Catherine C. MARTIN v. Ruben R. McGRAW.
• Court: Mississippi Supreme Court

Page 89

160 So.2d 89

249 Miss. 334

Catherine C. MARTIN v. Ruben R. McGRAW.

No. 42929.

Supreme Court of Mississippi.

Feb. 3, 1964.

Lester E. Wills, Meridian, for appellant.

Warner, Self & Ray, Meridian, for appellee.

McELROY, Justice:

This cause is before the Court on appeal by Catherine C. Martin, defendant in the court below, from a decree pro confesso and a final decree of the Chancery Court of Lauderdale County, Mississippi, in the cause of Ruben R. McGraw v. Frank A. Martin and Catherine C. Martin, the latter being the appellant herein, said cause being No. C-888 on the docket of the Lauderdale County Chancery Court.

After the filing of the record in this Court the appellant filed a petition for the issuance of a writ of certiorari directed to the Circuit Clerk of Lauderdale County, commanding him forthwith to make up and certify over his signature and seal of office, a complete and accurate transcript of the record in Cause No. 6658, Ruben McGraw v. Frank A. Martin, in said court, and to deliver and file the same with the Clerk of this Court. With her petition for the issuance of a writ of certiorari the appellant filed what purports to be a transcript of the record in the above mentioned Cause No. 6658, in the Circuit Court of Lauderdale County, containing, however, only such parts thereof as she thought to be material herein including a copy of the transcript of the notes of the stenographer covering the testimony heard in said cause and also a certified copy of the bill of sale referred to and identified by counsel for appellee in his cross-examination of the appellant.

The appellant cites in support of her petition for the issuance of said writ of certiorari section 1958, Mississippi Code of 1942, Rec., which provides:

'The Supreme Court may make all orders and cause to be issued and executed all process necessary or proper to secure an appeal to it from any judgment or decree from which an appeal may be taken to the Supreme Court, and to compel the production before it of a full and perfect transcript of the record and proceedings in any case in which an appeal to said court is provided for by law, and of all papers necessary to the disposition of any case or matter properly before it.'

Griffith, Mississippi Chancery Practice (2d ed. 1950), section 675, shows what must be considered solely on the record made in the trial court:

'An appeal in the supreme court must be considered solely on the record made in the trial. The appellate court is confined to the face of the record in the trial court, and a case cannot be heard on a different record than that made in the court below, duly certified. It cannot accept affidavits, or statements, or even evidence as to any facts not a part of the trial record and not before the trial court; and of course, it cannot reverse for any fact arising after the rendition of the final decree. Not only must a cause be determined in the appellate court on the record as made in the lower court, but moreover when there is no error in the decree of the lower court the appellate court cannot reverse in order to allow the parties to amend their bill or other proceedings in the lower court so as to present new facts; * * *' See Hemphill v. Smith, 128 Miss. 593, 91 So. 337, 24 A.L.R. 1456, where it is held that an appeal in the supreme court must be considered solely on the record even where another branch of the case has been acted on in a separate appeal to the same court. See also Keystone Lumber & Improvement Co. v. Devine, 18 So. 925 (Miss.). What is or is not the record on appeal is a matter to be dealt with and judicially determined by the appellate court, and for such purposes the clerk of the chancery court is pro hac vice an officer of the appellate court. Portwood v. Feld, 72 Miss. 545, 17 So. 373. See Sec. 1958, Code 1942. Peeler v. Peeler, 68 Miss. 148, 8 So. 392; United States Cas. Co. of New York City v. Malone, 126 Miss. 288, 88 So. 709. Whatever may be the duty of trial courts as to 'lending a helping hand' to the proper presentation of issues it is declared that the appellate court sits to decide only the issues properly made by the parties litigant, and not to make issues for them. Walker v. Hasser, 41 Miss. 90. See also Grego v. Grego, 78 Miss. 443, 28 So. 817.

The motion seeks to have brought before this Court a full and complete transcript of the cause in the circuit court wherein Ruben R. McGraw obtained a judgment against Frank A. Martin for the sum of $2,000. No appeal was taken from that judgment and the time for taking an appeal has expired. Frank A. Martin was a co-defendant with Catherine C. Martin in Cause No. C-888 in the chancery court, but he has not joined in this appeal from the above mentioned decree of the chancery court. No effort was made in the chancery court to have a transcript of the record in Cause No. 6658, Ruben McGraw v. Frank A. Martin, in the circuit court introduced in evidence or made a part of the record of the proceeding in the chancery court, and the only appeal before this Court is the appeal from the above mentioned decree of the chancery court in Cause No. C-888.

In Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173 (1929), the Court held:

'It is said to be a rule of almost universal application that the writ of certiorari will not issue in those cases in which there is a plain, speedy, and adequate remedy by appeal, which statement is no more than an application of the elementary rule of procedure that an extraordinary remedy will not be allowed when an ordinary remedy is, or has been, fully available. Certiorari cannot be made to serve the office of an appeal, and the rule is not altered by the fact that a party entitled to an appeal has allowed the time for taking it to elapse without availing himself of that right.' See also Shapleigh Hardware Co. v. Brumfield, 159 Miss. 175, 130 So. 98, 132 So. 93 (1930).

The petition for the issuance of a writ of certiorari in aid of the appellant's appeal from the decree of the chancery court, in our opinion, must be denied. We are unable to find any authority for the issuance of such writ in a case of this kind, and neither does the petitioner cite any authorities. Certiorari will lie only in such errors or defects as appear on the face of the record. Therefore, only such errors or defects as appear on the face of the record in the Chancery Court of Landerdale County can be considered by writ of certiorari. Certainly when there has been no attempt to introduce any of the record that was had in the other case in the Circuit Court of Landerdale County, it cannot be introduced in the Supreme Court. Allen v. Board of Levee Commissioners, 57 Miss. 163; Dickson v. Town of Centreville, 157 Miss. 490, 128 So. 332; Board of Supervisors of Forrest County et al. v. Melton, 123 Miss. 615, 86 So. 369; Yazoo & M. V. R. Co. v. Mississippi Railroad Comm., 169 Miss. 131, 152 So. 649; Mills v. Churchwell Motor Co., 154 Miss. 631, 122 So. 773; Hamilton v. Long, 181 Miss. 627, 180 So. 615.

In Sims v. Crecink, 208 Miss. 873, 45 So.2d 737, the court held on motion for certiorari for a certified copy of the record that this cannot be sustained when the instrument was not offered or introduced into evidence in the lower court.

Neither can this court take judicial knowledge of the records. In the case of Bridgeman et al. v. Bridgeman, 192 Miss. 800, 6 So.2d 608, wherein a defendant suffered a decree pro confesso and thereupon a final decree to be taken in a suit, but within the time allowed by law they took an appeal to the Supreme Court, and they urged that the present bill is insufficient to definitely state a cause of action and that in consequence the decree pro confesso and the final decree should be reversed and vacated.

When the clerk of the trial court made up the record for the appeal, he copied, at the request of counsel for the appellee, the papers in the previous suit, as if filed as exhibits to the bill in the present case. On motion of the appellant, this...