7 S.D. 34 | S.D. | 1895
This case comes before us on two motions,— one on the part of the respondent to dismiss the appeal, and the other on the part of the appellant to strike out the affidavit and certificate of the judge annexed to respondent’s motion, and to dismiss the same. The appeal is from an order discharging a warrant of attachment. The motion of respondent to dismiss the appeal is made upon the ground that there was oral- evidence received and considered by the court below that has not been brought to this court on this appeal, neither by bill of exceptions or otherwise; and this motion is supported by the affidavit of counsel and the certificate of the judge of the court below. The motion of appellant to strike out the affidavit and certificate of the judge and dismiss respondent’s motion is made on the ground that an objection to the abstract of appellant can only be taken by an additional abstract on the part of the respondent. This motion of appellant to strike out respondent’s affidavit and certificate of the judge, and dismiss his motion will be'first considered. The object of an additional abstract is to bring before the court some matter in the record not contained in appellant’s abstract, or to show that some matter that should appear in the record, necessary to perfect the appeal, had been omitted, or to show that matter in appellant’s abstract has not been correctly abstracted from the records. In . all these cases the question presented can be determined by an inspection of the record itself. The motion of the appellant in this case is to dismiss the appeal, not because the abstract does not contain matter appearing in the record, or contains matter incorrectly abstracted, or matter that should affirmatively appear in the record in order to perfect the appeal, but on the ground that there was evidence received and considered on the motion in the court below that has not been made a matter of record, and hence is not brought to thi§ court on appeal, This question can in no manner
This brings us to the motion to dismiss the appeal. The fact that there was oral evidence introduced and admitted in evidence on the motion in the court below to discharge the attachment, and n.ot in the record transmitted to this court, is not controverted by appellant’s counsel; but he insists that the evidence was not material. But this position cannot be sustained. The oral evidence given on the hearing of a motion in the court below must be brought to this court by bill of exceptions or statement. Bank v. Scougal (S. D., on rehearing.) 60 N. W. 162. The bill of excep