In the brief, counsel for petitioner, in referring to the hearing in the trial court, stated:
"The hearing, for want of a better word, was of short duration. The Chancellor summarily advised counsel that the State of Florida protected its women and, without being granted an opportunity to be heard, denied defendant's motion to dismiss, and without application referred the case to a special master for the taking of testimony and declared that he would limit the time for the taking of testimony. While the Michigan decree was entered almost nine years ago and from the pleadings no reason for delay in prosecution of the case was advanced, the Chancellor suggested that, if plaintiff's counsel desired, he would limit the time for taking testimony to forty-eight hours. At the conclusion of this session, he entered his order reflecting his thoughts."
Counsel for petitioner, in discussing the question of laches, also made the following statement in the brief:
"As a matter of truth and fact and dehors the record, she knew at all times the whereabouts of the defendant."
The record in this case consists of a bill of complaint, an answer incorporating the motion to dismiss, and an order of the court. The record is wholly devoid of any matters of fact beyond those contained in the pleadings before the court, and affords no basis for the statements made by counsel.
When one appeals from the judgment or decree of a trial judge, he impliedly represents that the record on appeal does reflect harmful error of the trial judge. His client, as well as the appellate court, has a right to consider an appeal such a representation. A record of the proceedings below is presented here to establish such error, and for no other purpose.
The record on appeal is made pursuant to the direction of *Page 806
appellant (as well as appellee), who had the privilege of establishing the proceedings in the lower court by the Judge's certificate, the clerk's certificate, and, if these fail, there are other means. See
The law intends that proceedings before the trial judge might be reviewed here, as they occurred below. When counsel, in oral argument or in brief, attempt to fortify the record on appeal by matters dehors the record, it has a great tendency to impress the appellate court that the appeal was improvidently taken, and that counsel is unwilling to rely upon the record to establish error. Without further reference to the impropriety of such action, it is evidence of weakness of position, and has a tendency to obscure the presentation of matters which might have merit.
THOMAS, C. J., BUFORD and CHAPMAN, JJ., concur.
