Reed v. Sears, Roebuck & Co.

CATES, Judge

(concurring specially).

This court, on April 25, 1968, had a mi-crofilm viewer and rolls of microfilm rotated thereon. I viewed some of the microfilmed sales slips purporting to have been signed by a person holding herself out as the putative wife of appellant. I think •these microfilmed sales slips are not before this court

Under the strictures of Coleman, J., in Northwestern Mutual Life Ins. Co. v. Workman, Ala., 214 So.2d 690 (1968), these sales slips were easily capable of being transcribed from the microfilm as exhibited by the “viewer.” 1

The sixth sentence of § 1 of the amended Act to abolish Bills of Exceptions on appeals from the law side of circuit and other courts (Act 97, approved Feb. 9, 1956) reads:

“ * * * If the reproduction of documents offered in evidence, such as maps or photographs, be difficult or impracticable, the court reporter shall so certify, and the Clerk shall thereupon attach the original, or a photostatic copy thereof, to the transcript on appeal, and such original or photostatic copy thereof shall be a part of the transcript on appeal. * * *»

This enactment is, albeit ambiguously, repeated in Supreme Court Rule 23:

“No original bill of exceptions or paper read or offered in evidence shall be sent to this court, * * * unless the court reporter certifies that its reproduction is difficult or impossible * *

There are decisions to the effect that probative objects and documents seen by the jury are in evidence on the trial even though no ritual of submission is followed. That aspect, however, is not before us on appeal. Cash v. Usrey, 278 Ala. 313, 178 So.2d 91; Rhodes v. Tomlin, 267 Ala. 491, 102 So.2d 904.

Here an assignment of error must connect up with evidentiary matter in the appellate record. Any attempt to salvage after original deliverance of this Court’s opinion is too late. Saylor v. State, 42 Ala.App. 666, 177 So.2d 924 (hn. 5, 6), and cases there cited.

*511Appellant is the moving party on appeal. Neither appellee nor appellate courts are under any duty to round up stray matters to enable appellant to put forth a case on appeal. Wanninger v. Lange, 268 Ala. 402, 108 So.2d 331; State for Use of Russell County v. Fourth National Bank of Columbus, Ga., 270 Ala. 135, 117 So.2d 145. Indeed, in a civil case appellee’s counsel might be subjected to criticism by his client.

Accordingly, on this point in the record before us, I cannot envisage error, much less a scintilla of reversibility. I vote to overrule the application for rehearing.

. Random House Dictionary: “Viewer * * * 3. any of various optical devices to facilitate viewing, esp. one that is small and boxlike with a magnifying lens, and sometimes a light source, in which a photographic transparency may he viewed. * * * ”