Ex parte Walker, 43 So. 130

Ex parte Walker

43 So. 130 | Ala. | 1907

SIMPSON, J. —

The application for a writ of mandamus in this case seeks to have this court compel the judge of the circuit court of Montgomery county to treat as a bill of exceptions a certain paper which had been stricken from the record of the probate court of Montgomery county previous to the appeal from that court to the circuit court. All appellate courts, in hearing appeals from inferior courts, must necessarily treat the record of the court below, as certified by the said court, as the record in the case. Each court must make out its own record and certify .to the same, and for the appellate court to open the record' and receive *640testimony, on which to add to the record certain things which the court itself has certified not to be in the record, would open a field of inquiry entirely inconsistent with the principles which govern in cases of appeal. If the lower court has acted erroneously, in excluding anything from the record which properly belonged therein, or in inserting anything therein which was not entitled to a place in the record, the matter should be remedied in the court where the error occurred, or by appropriate action .in the superior court, either by appeal or by some writ to compel the performance of a plain duty. Under our statutes and decisions, bills of exceptions, when properly signed, become parts of the record, and while our statutes have provided a way by which a bill of exceptions may be established when the judge of the inferior court refuses to sign it, and while this court will also inquire whether a bill of exceptions has been signed within the'time prescribed by law, so as to become a'part of the record, yet no way has been provided by which appellate courts can otherwise change the records -of the inferior courts. — Pearce v. Clements, 73 Ala. 256; Ex parte Henderson, 84 Ala. 86, 4 South. 284; L. & N. R. R. Co. v. Malone, 116 Ala. 600, 603, 604, 22 South. 897.

The writ is denied.

Tyson, C. J., and Haralson and Denson, JJ., concur.