Appellee, on petition for rehearing, complains that the record on appeal fails to contain all the evidence and, for that reason, that the decision reversing the Chancellor is in error, and submits in support of his position that the law as heretofore announced is as follows:
"No error predicated on lack of evidence to sustain decree was shown, where testimony introduced before trial court was not included in transcript." — Yearwood v. Welch,
"Assignment that court erred in entering final decree could not be considered where chancellor's certificate showed all evidence was not included in transcript, nor could assignment that court erred in finding that allegations of bill were supported by evidence and that equities were with complainant be considered." — Perry v. Perry,
The foregoing decisions were rendered before the adoption of the present rules, in 1942, which are more strict as to what the record should contain but more liberal as to supplying omissions.
The present Supreme Court Rules relating to the record on appeal provide:
"(10) Record Presumed to Contain Everything Material. Upon appellant proceedings it shall be presumed unless the record shows to the contrary, that such record transmitted to the appellate court contains all proceedings in the trial court material to the questions presented for decision by the appellate court." — Supreme Court Rule 11 (10).
And that:
". . . all pleadings, evidence and other matters not essential to the decision of said question (assignment of error) shall be omitted . . ." — Supreme Court Rule 11 (2) (a).
For violation of the rules of this Court, our Rules provided:
"(b) Penalty. Failure on the part of counsel or others to abbreviate the record on appeal as thus required will subject them to the payment of such costs as this Court may deem proper to impose." — Supreme Court Rule 11 (2) (b). *Page 258
And that:
"(11) Powers of Lower Court. After the entry of an appeal and before the record on appeal is filed in this court the things required to be done, including the fixing or extension of time within which they shall be done, shall be under the supervision of the lower court, subject to the control of this court." — Supreme Court Rule 11 (11).
And to mitigate the perils and hazards of errors and omissions, our rule provides that:
"(8) (b) Material Omissions Supplied. If anything material to either party is omitted from the record on appeal by error or accident or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, or the appellate court, on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary that a supplemental record shall be certified and transmitted by the clerk of the trial court. No other proceedings shall be necessary in event of a suggestion or diminution of the record." — Supreme Court Rule 11 (8) (b).
And:
"(8) (c) Appellate and Trial Court May Make Record SpeakTruth. Both the appellate and the trial court shall have power to rule on objections to the contents of the record on appeal and to make such order as unto it shall appear proper to promote the administration of justice and in order to reduce the volume of the record without injustice and yet present to the appellate court the matters complained of." — Supreme Court Rule 11 (8) (c).
When it develops that the Chancellor is about to bereversed and matters presented to the Chancellor have been inadvertently omitted from the record on appeal or omitted through error of judgment and it is made to appear even as late as upon rehearing, omitted matters may then be supplied, as provided by Supreme Court Rule 11 (8) (b), supra; but, after decision has been rendered on appeal and it is suggested on rehearing that matters were presented to the Chancellor and omitted from the record, it must be made affirmatively to *Page 259 appear, before this Court will concern itself with such omission, that such omitted matters are material to a determination of the errors assigned and, if supplied, would result in a change in the decision of this Court. A mere omission is not enough.
Since the Court's rules are strict as to requiring a reduced or abbreviated record, it will be liberal in allowing the record to be supplemented with such material matters which have been omitted.
The appellee submits that the record fails to contain the proceedings had in circuit court concerning the law in question — "Case No. 12,184" — wherein Annie Washington was plaintiff and Rudolph Washington was defendant. The present case is between Bessie Mae Mingo, as the sole heir of Annie Washington, and Randolph Washington, concerning the same land, but neither the materiality of "Case No. 12, 184" nor any particular portion thereof has been made to appear. Until some matter within "Case No. 12,184" is made to appear material to this appeal, relevant to the equities and necessary to promote a better administration of justice, it will be considered otherwise.
Rehearing denied.
THOMAS, C. J., ADAMS, J., and JACKSON, Associate Justice, concur.
