Webster v. Stadden

8 Wis. 225

• Court: Wisconsin Supreme Court
• Decided: June 15, 1859
• Status: Published

Opinion

By the Court,

Smith J.

We have no return of the clerk here, of the proceedings of the court below. The whole record here before us consists of a printed case, with the following indorsement on the cover, viz: “ Wé hereby stipulate that this printed- case shall be filed as a return of the clerk of the circuit court to this appeal; and shall constitute the record in Supreme Court; and we hereby expressly waive all objections to irregularities and informalities in this appeal. January 1, 1859.

(Signed) M. H. CARPENTER,

For appellant.

“ By this stipulation we wish to be understood that the record is simply supplied by the filing of the case.

(Signed) TODD & ROCKWELL.”

There is no return of the clerk of the circuit court evidenced by the seal of that court; nothing which authorizes us to believe that the circuit court ever passed upon the questions raised in the printed case. In short there is no record here to review ; no judgment either to affirm or reverse.

Upon such a record, or return to an appeal or writ of error, how could this court pronounce judgment of affirmance or reversal ? Our opinion might be elicited, it is true, but it might be flouted back in the face of this court with the remark not inappropriate, that we had assumed to affirm or reverse a judgment which had never been considered or rendered by the court from which the appeal purports to have been taken, and that there was no record in the circuit court upon which our judgment could operate.

In some respects, the stipulation of parties or their attorneys may supply a defect in the record. But we are not advised that the stipulation of parties or attorneys can “ supply” a whole record, process and the service thereof, seal, authentication, judgment; all and everything coming from the printer and not the clerk. Besides, the qualification of the stipulation signed by Messrs. Todd and Rockwell is vague, incomplete and altogether inadequate, even if a record could be supplied by stipulation.

This court is one of appellate, and not of original jurisdiction. In all ordinary cases, all cases of appeal or error, there must have been a proceeding, in good faith, an adjudication in an inferior court. This inferior court must have passed upon the case, and must send up a record of its proceedings. It is not for parties to stipulate -that the court below would have decided thus and so, provided the case had been brought before such court and upon the hypothesis of such decision invoke the opinion of the members of the court.

Such practice cannot be tolerated. In this case, however, we have no hestitation in expressing our opinion that the plaintiffs cannot recover, upon the stipulated finding of the facts disclosed by this printed statement.