Daniels v. Gower

ON REHEARING.

Beck, J.

3. practice in courtTrecord. Upon the petition of plaintiffs a rehearing was allowed in this case, for the reason we were not satisfied that a mistake did not occur in the opinion in the statement that the promissory note which is the foundation of the action is not negotiable. The correctness of this statement is the only question now to be considered; it constitutes the only question raised in the petition for rehearing. As the opinion heretofore filed is assailed on no *323other ground, the other points of the opinion demand no further attention.

A word of explanation as to the condition of the record will disclose the ground upon which counsel insist upon the existence of the mistake in our opinion. The original abstract shows the note to be negotiable; an amended abstract shows the contrary. It was, however, denied by appellant. No transcript of the record was found in this court. A certified copy of the note had been filed, but did not come into our hands; it appears to have been lost. Upon these facts counsel for appellant insist that we mistakenly assumed in the original opinion that the note sued upon is non-negotiable.

A properly authenticated copy of the bill of exceptions containing a copy of the note has been filed, which verifies the correctness of the statement of our opinion that the note is not negotiable. But appellant in contradiction of the correctness of the record as set out in the bill of exceptions files a copy of the note which shows it to be negotiable. This paper is certified by the clerk of the court below, and shows that the note was “ left with ” him by the attorneys of plaintiffs. A certificate afterward made by the clerk shows that the “ note has never been marked filed, but was in fact left with the clerk several months after the cause was tried.”

The bill of exceptions showing the note to be non-negotiable is of the record in the court below, and the copy before us, being duly authenticated, is of the record of the cause in this court. This record of course cannot be contradicted by the certificate of the clerk, which is no part of the record; this is a familiar rule prevailing in this and all other appellate courts. It will also be observed that the certificate of the clerk shows that the note was left with him after the trial, and that it was not filed at the trial. It is hardly necessary to observe that records in the court below and in this court cannot be made in this way.

It appears from the foregoing that the statement in the opinion complained of by counsel for appellant is correct. *324If at the time it was made the abstracts before us did not justify the statement, the record of the case now before us fully sustains its correctness. We, therefore, adhere to our first opinion.