#### ALDERSON *v.*NEWAYGO CIRCUIT JUDGE.

Appeal and Error — Equity—Settlemet of Record.

Under Chancery Rule 37e the circuit judge will not be compelled by writ of mandamus to certify to a record which does not contain a true or complete transcript of the proceedings so as to fairly present the questions involved in the appeal, although the appellee does not propose amendments to the proposed case.

Mandamus by John J. Alderson against Joseph Barton, circuit judge for the county of Newaygo, to compel respondent to settle and sign a record on appeal.

Submitted January 14, 1913.

(Calendar No. 25,377.)

Writ denied February 18, 1913.

*Everett &*Biblet, for relator.

*William J.*Branstrom, for respondent.

Kuhn, J.

An order was entered that the respondent show cause why he should not authenticate a proposed record on appeal in a certain cause pending before him wherein this relator is complainant and Daniel W. Hollister *et al.*are defendants.

The petitioner alleges that the record presented to the court consisted of a motion to vacate or amend the order or decree dismissing the bill of complaint filed in said cause, the notice of the hearing of said motion, the affidavits of John J. Alderson, Fred R. Everett, George W. Shepherd, and the letter to Anderson & Branstrom, all in support of the motion, together with the order of the circuit judge denying said motion, and claims that it is a complete record of all the proceedings had in said court on said motion. It is also claimed that one of the solicitors for defendants was present in court when said pro*609posed case was presented to the court, and that he did not propose nor offer any written amendments or corrections to said record as presented.

The respondent, in his answer, sets up the following:

> “ This respondent denies that there was no evidence taken on the hearing of the said cause, except the affidavits presented by the said complainant, and avers the truth to be that on the 4th day of March, 1912, when the said motion from which the said appeal was taken was presented to the court, there was also presented to the circuit court by the said defendants a motion to retax costs, which latter motion was entitled in the same cause and based and growing out of the same state of facts and circumstances as the former motion; that the former motion asked the court to dismiss, and, if not to dismiss, to vacate, that portion (in particular) of the decree entered dismissing the original bill of complaint, which provided for certain witness fees and the latter motion, viz., the motion to retax costs, asked for the retaxation of costs pertaining to the said witness fees; that the said motions were practically heard at the same time, *i. e.,*the said complainants read certain affidavits, copies of which are part of relator’s petition, which was the evidence produced by the said complainant on both motions and the defendant produced certain witnesses that were sworn and testified in their behalf, which was the evidence produced by the said defendant on both the said motions; that after the production of said testimony by the said complainant and the said defendants on said motions, and after hearing arguments of counsel, and being fully advised in the premises, this respondent denied the motion of the said complainant (relator), and allowed the motion of the said defendants; that this respondent did not decide the said motion of the said complainant upon the affidavits merely as the said record would make it appear, but upon the testimony of witnesses sworn in open court.”

The respondent further says that while no amendments to the record were offered or suggested by the counsel who was present at the time the proposed record was presented to him, if mandamus should issue, it would compel him to certify a record that was not full, complete, nor *610correct, and it would be unfair and unjust to the parties litigant and would present said cause to this court in a false light.

Our attention is called to Chancery Rule 37, subd. “e” (158 Mich, xxx), which provides:

> *“*(e) In case of the failure of the adverse party to prepare and serve his amendments to the proposed case on appeal, together with the exhibits and other papers required by this rule to be served in connection therewith, the judge who heard said cause or proceeding, or in the event of his absence or disability, then any other judge authorized to act in any matter in connection with the settling of cases for review on appeal as provided by this rule, upon its being made to appear by affidavit, or otherwise, to his satisfaction, that due service of the papers required to be served by the party seeking the appeal was made upon the adverse party, or his solicitor of record, and that all steps required by this rule to be taken by the party so seeking to appeal have been so taken by him within the time required, and of the expiration of the time herein limited for the service of the proposed amendments by said adverse party, shall certify and settle the case in the manner and form as proposed by the party seeking to appeal as the case on appeal therein.”

No amendments having been presented, it is urged that it was obligatory upon respondent to certify and settle the case in the manner and form as proposed by the parties seeking to appeal. We cannot agree with this contention, as subdivision “a” of the same rule provides that the case made and settled shall set forth the substance of all the evidence taken or read at the hearing, and the language of the rule should be construed to mean that, if no such amendments are offered, the court shall certify the case, if he is satisfied that it presents a proper record of the proceedings had before him, and fairly presents the questions involved in the controversy to this court.

This proceeding being heard on petition and answer, the averments in the respondent’s answer must be taken as true. It would be manifestly improper to compel a circuit *611judge to authenticate a record which he considered incomplete, and which would not properly present to this court the evidence upon which he based his conclusions.

Relator’s petition is denied, with costs.

Steere, C. J., and Moore, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.