I accept the material and controlling facts as stated by the majority, but I cannot concur in the inferences drawn therefrom.
The question presented is one of practice solely, and that rule of practice should be adopted which will lead to the best results and which is best calculated to do justice between litigants in the future.
In my judgment, no rule should be adopted which disregards or denies the facts certified to by the trial judge. The supplemental statement of facts which *Page 332 bears the endorsement of the clerk to the effect that it was filed on September 30, 1936, carries the certificate of the trial judge in which appears the following:
"That the above and foregoing supplemental statement of facts were duly and regularly filed with the clerk of said court and thereafter duly and regularly served within the time authorized by law.
"That the above and foregoing supplemental statement of facts contains all the material facts, matters and proceedings in the case which were omitted from the defendants' proposed statement of facts."
If that certificate so made by the trial judge was erroneous in fact, the party aggrieved should have promptly moved in the court below for its correction. Not having so moved, and having permitted the case to come to this court with that certificate wholly unimpeached, we must assume, if we assume anything, that the trial court heard the necessary evidence, ascertained and found as a fact that the clerk's endorsement was erroneous, and likewise determined that the statement had been duly and regularly filed within the time authorized by law and certified accordingly.
The judge who presides at the trial is the complete master of all proceedings in the case until his jurisdiction is lost. Notwithstanding the giving of a notice of appeal, the trial court still has jurisdiction to settle and certify a statement of facts, and his certificate imports absolute verity.
This is simply a conflict between the certificate of the clerk and the certificate of the trial judge, and the question is only which shall prevail. The clerk has no power whatever over the trial judge, while the judge, speaking generally, may command and direct the clerk at will. Hence, when the trial court, by a later certificate, impeaches the clerk's earlier certificate, we are, in my opinion, bound to hold, in accordance *Page 333 with the final certification, that the supplemental statement of facts was both filed and served regularly within the time authorized by law.
In my judgment, the only proper rule for this court to adopt is one which will so recognize the power and authority of the trial judge. No harm can follow, because if, through inadvertence, the trial court makes a mistaken certificate, he has power to correct it on motion, and in the absence of such a motion, his certificate should not be questionable here.
I therefore dissent.
HOLCOMB, J., concurs with TOLMAN, J.