His chief complaint goes to the correctness of the statement in our principal opinion that upon the filing of respondent's objections questioning the sufficiency of the abstract, appellant, instead of effectually confessing the insufficiency of his abstract and asking leave to amend the same, elected to stand upon the abstract as already prepared, and filed suggestions in opposition to respondent's objections and motion to dismiss. *Page 145
What was said in this connection in our principal opinion was said advisedly, and with full regard for the matters upon which appellant relies and to which he directs our attention in his motion for rehearing.
It was not until the very morning of the argument and submission of the case that appellant first took notice of respondent's objections, when he filed what he denominated as his answer and suggestions in opposition to respondent's objections to the abstract and motion to dismiss the appeal. In the course of such answer he took and insisted upon the position that his abstract was sufficient in all material respects, and that the suggestion that it was insufficient was "merely an erroneous conclusion on the part of respondent's counsel." He specifically contended that respondent was in error in representing that the abstract did not identify any bill of exceptions or show that a bill of exceptions had been filed in the case, and also argued that the matter of the filing of his motions for a new trial was properly recited in the abstract.
It is true, as appellant points out in his motion for rehearing, that at the conclusion of his argument in opposition to respondent's objections he did suggest that in the event this court should conclude that the rules of court had not been followed "to the letter," and that any of respondent's objections were well taken, we should then grant him leave, within a reasonable time, to make such amendments, by supplemental abstract or otherwise, as would meet the needs of the situation. This, however, was not such a request for leave to amend as our Rule 33 contemplates, which, if duly, timely, and unequivocally made, will address itself to the court's discretion as to whether the amendment shall be allowed, assuming, of course, that the facts will so permit, and that the amendment may be made before, and not after, the submission of the case, and upon such terms as will protect the rights of the respondent.
When respondent, in obedience to the requirements of Rule 33, filed his objections questioning the sufficiency of appellant's abstract, it was then incumbent upon appellant to determine for himself whether he should effectually confess the insufficiency of his abstract and ask leave to amend, or whether, on the contrary, he should do as he did, that is, oppose respondent's objections and stand upon his abstract as already prepared and served upon respondent. If he had chosen the former course, and had represented that the abstract was susceptible of amendment, the court would undoubtedly have looked with favor upon his request for leave to amend in view of the announced purpose of Rule 33, which is "to avoid disposing of appeals on points of appellate procedure and mainly the insufficiency of abstracts of record, and to facilitate, instead, the disposition of appeals on their merits." But having opposed respondent's objections and insisted upon the sufficiency of his abstract in the submission *Page 146 of the case, appellant may not now that the court, by its opinion, has determined the matter against him, claim the right to still amend and have a second submission of the case upon such a corrected abstract as would cure the defects in the original abstract which respondent has suggested and the court has found to exist.
As pointed out in the principal opinion, the purpose of an abstract is to bring before the appellate court in abbreviated form an accurate and authentic history of all the proceedings in the case as they were had in the course of the trial below. The appellant knows, or may readily ascertain, what the record shows with respect to the steps taken in the circuit court, and it is therefore no imposition upon him to be expected to bring up, in the first instance, a correct and sufficient summary of what transpired in the case from the institution of the suit until the perfection of his appeal. Failing in this, he may, if he so requests, be given leave to amend an insufficient abstract before submission of the case, if he indicates that the facts will warrant the amendment, and it may be made upon such terms as will not prejudice the rights of the respondent. In any event, however, the matter of perfecting his appeal and of bringing before the appellate court whatever record may be necessary for the disposition of the errors he assigns is the appellant's own personal responsibility, which he may not evade or shift to the court by standing upon an insufficient record in the expectation that if the court, in its decision of the case, holds against him upon the point, it will nevertheless provide that he may still, at that late stage of the proceeding, take whatever steps may be necessary to bring a proper record before the court.
As a further ground of his motion, appellant insists that even upon a consideration of so much of the record as we have held was properly before us, it was evident, and we should have determined, that the contract sued on was illegal and champterous in certain respects so as to have afforded no basis for respondent's recovery. His position seemingly is that the point was effectively raised by his assignments charging error in the overruling of his demurrer ore tenus, and in the court's refusal to direct a verdict in his favor at the close of the entire case. Suffice it to say that all such matters, in their very nature, could only have appeared in a bill of exceptions, and in the absence of a bill of exceptions, were not here for our review.
It follows that appellant's motion for rehearing should be overruled; and the Commissioner so recommends.