, 1892-06-28
APPEAL DISMISSED.

All decisions of the supreme court viii
appear in The DAILY and WEEKLY TRIB
UNE.
Clark Harris Company ct al, respondents
vs.. d. William DOuthet, appellant
No. 372, filed June a. 1892.
The certificate to the statement of facts
filed in this cause was that it contained all
the testimony upon which the cause was
tried, together with all objections and ex
ceptlOns iaken to the reception or rejection
of testimony. On the ground of its insult
tciency respondent moves the court to
strike the statement from the record and
dismiss the appeal. The statute relating
to the settlement of the statement of facts
says that the certificate shall be sufficient
if it certify that the statement contains all
the material facts in the case. 1t further
says that in a law case it shall only be nee
essary that the statement shall contain so
much as was formerly requisite in a bill of
exceptions, but that in an equity case it
must contain all the testimony, together
with all objections and exceptions taken
to the reception or rejection of testimony.
1t will be seen from the statutory requi-
sites above stated that in any case it must
appear from the certificate Of the judge
that all the material facts in the case are
embodied in the statement We cannot
agree with the argument of counsel for APP
pellant that that part of the statute requir-
ing such showing as to all the material
facts applies only to law case. and that
the only provision applicable to an equity
case is that which requires that it shall
In our opinion, the first part of
the section under consideration refers
as much TO an equity as to a law case
and that before this court can be properly
advised as to the facts in any case it must
appear from the certificate of the Judge
hot nNN Nn voN.. ms,N -s.A- n
therein. This, Of course, need not appear
IN any exact form of words, as the statute
does not require it. 1t will be sufficient if
from the whole certificate it is made to ap-
pear that it contains all the material facts
IN the case. In law case these material
facts must include so much as was neces-
sary for the purpose of bill of exceptions.
and in an equity case it must include all
the testimony with the objections and ex-
ceptlOns taken to It's reception or rejection
1t is not necessarily made to appear from
the certificate in this case that the state
ment contains all the material facts. The
Judge has not said so even in substance,
and 1t does not follow from the fact that ali
the testimony, together with all the obiec-
tiOns and exceptions taken to its reception
or rejection, are embodied in the statement
that it contains all the material facts
in the case. There may be facts entirely
outside of the testimony, or any objections
Ut e4CepJlOus growing out OF the same
which were taken into consideration by the
court in its disposition of the case. There
may have been such stipulations or waivers
on the part of the parties as to have had
controlling influence III the determination
of the cause, yet all of these could be omit
ted from the record and the certificate of
the judge in the language used in this case
be perfectly true.
The motion to strike the statement of
facts must prevail, and under frequent rul-
lngs Of this court as a necessary result
thereof the appeal must be dismissed. In
coming to the conclusion that we have in
this case we have only carried into effect
the logical result of numerous rulings here
tofore made by this court in causes of this
kind. HoYT judge.
We concur: Anders, G. j., Dunbar, j.