SOLON B. TURMAN, PLAINTIFF IN ERROR,

v.

ARTHUR D. WHALEY, DEFENDANT IN ERROR

Taylor, C. J.

-This cause was submitted' upon abstracts of the record filed here on June 7th, 1897. No exceptions were filed to such abstracts until August 10th, 1897, after the lapse of the time for their filing as prescribed by the rules. Upon taking the case up for final disposition in its regular order on the docket, the court finds that if the cause is considered solely upon said abstracts of the record there will necessarily be a reversal of the judgment below upon the ground of a want of evidence to support the verdict upon which it is predicated, but it is admitted in the briefs of counsel for the plaintiff in error that there was some testimony at the trial tending to sustain the verdict found. This admission in the briefs of counsel is tantamount to an admission upon his part that the abstracts of the record filéd by him fail to state the case fairly, fully and correctly, and that by such failure error is made to appear, where otherwise none might exist. Were there any evidence before us that the omissions in the abstracts were intentionally made this court would not hesitate to dismiss the writ of error, but there being no such evidence we conclude that such abstracts were prepared by counsel under a misapprehension of the scope and purpose of the rules governing the preparation of abstracts. Appellate courts will sometimes sua motu order certiorari or other proper proceeding for the correction of records for the purpose of informing its conscience in order to affirm a judgment, though never ta reverse one or make error. Merchants’ Nat. Bank of Jacksonville v. Grunthal, 39 Fla. 388, 22 South. Rep. 685.

To decide the case upon an admittedly incorrect abstract of the record, whereby error is made to appear where none may exist were the true record of the case presented, seem® to us to present a case where the demands of justice require us to exercise our discretion to call, sua motu, for either true and correct abstracts of th’e record, or, in their stead, for two additional copies, under the rules, of the transcript of the record; and upon failure to comply therewith to dismiss the case under the power reserved by the abstract rule, No. 20. It is, therefore, hereby ordered and adjudged that the plaintiff in error, within twenty-days from the date of the filing, of this order, file with the clerk of this court either perfected and correct abstracts of the record, or, in their stead, two copies of the transcript of the record, and if he shall fail so to do'the cause shall stand dismissed.

Mabry, J.

(dissenting).

Rule 20 for the government of the Supreme Court in reference to abstracts does not ,in my opinion, authorize the order made in this case. The rule imposes upon a plaintiff in error or appellant the duty of making such an abstract as therein provided and the case shall be tried upon the abstract without reference-to the'transcript, unless the defendant in error or appellee shall question its sufficiency or correctness in some particular to be specified, within fifteen days after the return day of the cause. If no exceptions are filed to the abstract within the time prescribed, its sufficiency land correctness shall be deemed to have been agreed upon by the parties. In this case an abstract was filed and no exceptions thereto were made ¡within the time prescribed, and, therefore, the abstract must be deemed to have been agreed upon by the parties. The defendant in error is making no objection to-the abstract in the way permitted by the rule, but the court finds from a statement in the brief of counsel for plaintiff in error that some testimony has been,omitted from' the abstract, and for this reason new'abstracts or copies of the record are now ordered to be prepared within a time specified upon which the case will be tried.

Rule 20 expressly provides that if (the plaintiff in error or appellant fail to comply with its requirements the cause may be dismissed upon,motion,of .defendant in error or appellee, or the courtunay do so of its own motion. I agreeUo-.the, view that the court has the power, under the rule, to dismiss a,'cause for an intentional misrepresentation of it in the abstract, but the remedy clearly pointed out in the rule'is to dismiss the cause. It’is found that there was no intentional misrepresentation of the cause in the present abstract, but that in analogy to the rule sometimes employed by the courts of its own motion in aid of the affirmance of a judgment to send to the lower court for ¡a part of'the record (stated in Merchants Nat. Bank of Jacksonville v. Grunthal, 39 Fla. 388, 22 South. Rep. 685) the court will in 'this case order new abstracts or,copies of the record to be made. 1 agree that there is no sufficient showing of an intentional misrepresentation of the case as shown\by the abstract, but I think the Grunthal case affords no ground whatever for the order made. We are not sending’down a certiorari to perfect a record, and, as stated, there is no sufficient showing on the face of the abstract that it is defective in reference to a statement of evidence. The analogy in the Grunthal case, instead of affording an authority for the order, would, it seems to me, be misleading. One of two courses should be pursued by the court in dealing with abstracts under rule 20: either to dispose of the case on the agreed abstract, or to dismiss the cause for a failure to comply with the rule. The rule under which the order is made affords no other remedy.