Turman v. Whaley , 43 Fla. 284 ( 1901 )

Taylor, C. J.

-This cause was submitted' upon abstracts of the record filed here on June 7th, 1897. No exceptions were filed to such abstracts until August 10th, 1897, after the lapse of the time for their filing as prescribed by the rules. Upon taking the case up for final disposition in its regular order on the docket, the court finds that if the cause is considered solely upon said abstracts of the record there will necessarily be a reversal of the judgment below upon the ground of a want of evidence to support the verdict upon which it is predicated, but it is admitted in the briefs of counsel for the plaintiff in error that there was some testimony at the trial tending to sustain the verdict found. This admission in the briefs of counsel is tantamount to an admission upon his part that the abstracts of the record filéd by him fail to state the case fairly, fully and correctly, and that by such failure error is made to appear, where otherwise none might exist. Were there any evidence before us that the omissions in the abstracts were intentionally made this court would not hesitate to dismiss the writ of error, but there being no such evidence we conclude that such abstracts were prepared by counsel under a misapprehension of the scope and purpose of the rules governing the preparation of abstracts. Appellate courts will sometimes sua motu order certiorari or other proper proceeding for the correction of records for the purpose of informing its conscience in order to affirm a judgment, though never ta reverse one or make error. Merchants’ Nat. Bank of Jacksonville v. Grunthal, 39 Fla. 388, 22 South. Rep. 685.

To decide the case upon an admittedly incorrect abstract of the record, whereby error is made to appear where none may exist were the true record of the case presented, seem® to us to present a case where the demands of justice require us to exercise our discretion to call, sua motu, for either true and correct abstracts of th’e record, or, in their stead, for two additional copies, under the rules, of the transcript of the record; and upon failure to comply therewith to dismiss the case under the power reserved by the abstract rule, No. 20. It is, therefore, hereby ordered and adjudged that the plaintiff in error, within twenty-days from the date of the filing, of this order, file with the clerk of this court either perfected and correct abstracts of the record, or, in their stead, two copies of the transcript of the record, and if he shall fail so to do'the cause shall stand dismissed.