is inadmissible on appeal to show that a motion stated therein to have been made by one of the parties was in fact made by the other.18 And facts not appearing in the bill of exceptions will be treated by the reviewing court as nonexistent. 19 Absence from the record in a criminal case of an affirmative showing that the accused was given an opportunity to plead has been held conclusive on appeal that he was not given such opportunity.20 130. Correction. If the transcript as certified to the appellate court is not the true record, it may be corrected by proper proceedings. The usual method for so doing is to suggest a diminution of the record, and apply for a writ of certiorari; and successive writs may be allowed until a correct transcript of the record is secured. Instead of issuing another writ of certiorari when conflicting transcripts have been returned, the appellate court may, in extraordinary cases, require the officer to bring the original record into court and have the transcript taken therefrom or have the former one corrected, but this course is unnecessary when one transcript is merely more full than the other and is not contradictory of it. A common joinder in error is an admission by the defendant in error that what is returned as the record of the judgment below is true; and after such joinder neither party can of right allege diminution or have a certiorari. And a party joining in issue on assignment of error through the misrepresentation of the adversary ought to make a showing of it to the court, and move to withdraw the joinder, and suggest a diminution of the record. In order to sustain the judgment, how Ind. 443, 75 N. E. 884, 112 A. S. R. 244, 6 Ann. Cas. 851, 2 L.R.A. (N.S.) 251; Beck v. Dowell, 111 Mo. 506, 20 S. W. 209, 33 A. S. R. 547; State v. Reid, 18 N. C. 377, 28 Am. Dec. 572; State v. Tingler, 32 W. Va. 546, 9 S. E. 935, 25 A. S. R. 830; Fink v. Thomas, 66 W. Va. 487, 66 S. E. 650, 19 Ann. Cas. 571. 168 Ind. 192, 80 N. E. 145, 120 A. Am. Dec. 335; Terrell v. State, 165 S. R. 356, 10 L.R.A. (N.S.) 933; Freeman v. Dodge, 98 Me. 531, 57 Atl. 884, 66 L.R.A. 395; Kunkel v. Spooner, 9 Md. 462, 66 Am. Dec. 332; Hunter v. Wethington, 205 Mo. 284, 103 S. W. 543, 12 Ann. Cas. 529; Norwegian Plow Co. v. Bollman, 47 Neb. 186, 66 N. W. 292, 31 L.R.A. 747; Jones v. Lewis, 30 N. C. 70, 47 Am. Dec. 338; Taylor v. Modern Woodmen of America, 42 Wash. 304, 84 Pac. 867, 7 Ann. Cas. 607; Estate of Kessler, 87 Wis. 660, 59 N. W. 129, 41 A. S. R. 74. 18. Norwegian Plow Co. v. Bollman, 47 Neb. 186, 66 N. W. 292, 31 L.R.A. 747. A certiorari will not be granted to incorporate in a case settled an exception which appellant has waived by failure to set it out in his statement of case on appeal. State v. Black, 109 N. C. 856, 13 S. E. 877, 14 L.R.A. 205. 2. State v. Reid, 18 N. C. 377, 28 19. Freeman v. Dodge, 98 Me. 531, Am. Dec. 572. 57 Atl. 884, 66 L.R.A. 395. 20. State v. Walton, 50 Ore. 142, 91 Pac. 490, 13 L.R.A. (N.S.) 811 and note. 1. Bergen v. Riggs, 40 Ill. 61, 89 3. Tomlinson v. Armour & Co., 75 N. J. L. 748, 70 Atl. 314, 19 L.R.A. (N.S.) 923. 4. Bigby v. Powell, 25 Ga. 244, 71 Am. Dec. 168. ever, when there clearly appears to be a diminution, a writ of certiorari may be allowed after the argument of the appeal. A certiorari is sometimes awarded by the court ex officio for its own satisfaction or to enable it to affirm, but it is not done with a view to supply matter which would enable it to reverse, nor is it done unless the diminution appears from an inspection of the transcript itself. The appellate court itself has no power to correct the record of the trial court, and for that purpose inspect the minutes of the clerk; and certiorari will not lie to cause a record to be made or corrected; this must be done in the trial court.8 Under some statutes, when the appellate court is satisfied that the return is substantially defective, it may compel the clerk by rule to certify up the omitted order, entry or paper, but when the return is verified by the oath of the judge, and the motion to amend is supported only by the statements of counsel that the return is defective, it is not sufficiently shown that the return is defective so as to require the court to grant a motion for a rule on the judge requiring him to amend the return.10 The mere filing of certified copies of omitted instructions will not remedy the irregularity of failing to set them out in the record.11 No record lodged with the clerk of the appellate court can be changed without the permission of the court duly entered of record at the time.12 On appeal from an intermediate appellate court, the higher court acts upon the record which was before the intermediate court, and that alone, and if the record was defective it should have been amended in the intermediate court.18 131. Abstract and Index.-For the convenience of the appellate court the appellant or plaintiff in error in some jurisdictions is required by a rule of court or statute to furnish an abstract of the record.1 The appellee, however, is not bound by the abstract filed by 5. Judson v. Eslava, Minor (Ala.) 71, 12 Am. Dec. 32. 6. Auditor v. Woodruff, 2 Ark. 73, 33 Am. Dec. 368. 7. Bergen v. Riggs, 40 Ill. 61, 89 Am. Dec. 335; Christian v. Miller, 3 Leigh (Va.) 78, 23 Am. Dec. 251. 8. State v. Tingler, 32 W. Va. 546, 9 S. E. 935, 25 Ă. S. R. 830. 9. Thibault v. Lennon, 39 Ore. 280, 64 Pac. 449, 87 A. S. R. 657. 10. Fortune v. Wilburton, 5 Ind. Ter. 251, 82 S. W. 738, 5 Ann. Cas. 287. 11. Beck v. Dowell, 111 Mo. 506, 20 S. W. 209, 33 A. S. R. 547. 12. State v. Feeley, 194 Mo. 300, 92 S. W. 663, 112 A. S. R. 511, 3 L.R.A. (N.S.) 351. 13. Claflin v. Dunne, 129 Ill. 241, 21 N. E. 834, 16 A. S. R. 263. 14. Dobbins v. Little Rock R. & Electric Co., 79 Ark. 85, 95 S. W. 794, 9 Ann. Cas. 84; Nunn v. Lynch, 89 Ark. 41, 115 S. W. 926, 16 Ann. Cas. Traction Co., 89 Ark. 222, 116 S. W. 852; Oliver v. Ft. Smith Light & & S. R. Co. v. Raines, 90 Ark. 398, 204, 131 A. S. R. 86; St. Louis, I. M. 119 S. W. 665, 17 Ann. Cas. 1; Collins v. Collins, 139 Ia. 703, 117 N. W. 1089, 16 Ann. Cas. 360, 18 L.R.A. (N.Ş.) 1176; Priddy v. Boice, 201 Mo. 309, 99 S. W. 1055, 119 A. S. R. 762, 9 Ann. Cas. 874, 9 L.R.A.(N.S.) 718; the appellant. If it is not sufficiently full to present his theory of the case or is otherwise insufficient for that purpose, he will be permitted to file an additional or amendatory abstract, and an amendment to the appellant's abstract of the record will not be stricken out because not filed by the appellee or served on the appellant, strictly within the time required by the rule of court, if the delay is slight, and a sufficient excuse therefor is shown.15 Where the appellee intentionally omits matter from his additional abstract he should not be permitted, after argument of the appeal, to raise entirely new questions by an amended additional abstract.16 Where there is no certification of the record, statements in the amended abstract of the appellee must be taken as true when this conflicts with the abstract of the appellant. The appellee's additional abstract is not, however, to be taken as admitted, although not denied in terms, where the appellant has filed a certified transcript of the record, and a statement that he has done so because the correctness of his abstract has been so persistently denied, and has attached an index of the transcript and abstract, for the purpose of aiding in the verification of the abstract by the transcript.18 An abstract of the declaration is included in a rule of court requiring an appellant to furnish the court with a complete abstract of the record,19 and in the case of pleadings the abstract should give their substance, a mere reference to the place in the record where the declaration will be found being insufficient.1 Instructions complained of should also be set out in the abstract.2 In the absence of proper objection it will be presumed on appeal that the abstract is correct and properly prepared, and this rule will be relaxed only in exceptional cases. Even though the abstract does not comply with the rules of the court, the court still possesses a discretion in determining whether it shall be stricken out. In some juris 1072; Edson v. Poppe, 24 S. D. 466, 124 N. W. 441, 26 L.R.A. (N.S.) 534. 15. Richards v. Knight, 78 Ia. 69, 42 N. W. 584, 4 L.R.A. 453; Doolittle v. Doolittle, 78 Ia. 691, 43 N. W. 616, 6 L.R.A. 187; Collins v. Collins, 139 Ia. 703, 117 N. W. 1089, 16 Ann. Cas. 630, 18 L.R.A. (N.S.) 1176. 16. Grigsby v. Wopschall, 25 S. D. 564, 127 N. W. 605, 37 L.R.A. (N.S.) 206. 17. Carlson v. Adix, 144 Ia. 653, 123 N. W. 321, Ann. Ças. 1912A 1204. 18. Joy v. Betzer, 17 Ia. 73, 41 N. W. 575, 3 L.R.A. 184. 19. Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035, 108 A. S. R. 196, 3 Ann. Cas. 487, 1 L.R.A. (N.S.) 215. 1. Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035, 108 A. S. R. 196, 3 Ann. 2. Emerson v. McNeil, 84 Ark. 552, 106 S. W. 479, 15 L.R.A.(N.S.) 715; Jacobs v. Bentley, 86 Ark. 186, 110 S. W. 594, 126 A. S. R. 1086; Harris v. Graham, 86 Ark. 570, 111 S. W. 984, 126 A. S. R. 1110; People v. Weil, 243 Ill. 208, 90 N. E. 731, 134 A. S. R. 357; Kelly v. Pierce, 16 N. D. 234, 112 N. W. 995, 12 L.R.A.(N.S.) 180. 3. Kirchman v. Standard Coal Co., 112 Ia. 668, 84 N. W. 939, 52 L.R.A. 318; State Finance Co. v. Mather, 15 N. D. 386, 109 N. W. 350, 11 Ann. Cas. 1112. 4. Iowa City v. Glassman, (Ia.) 136 N. W. 899, 40 L.R.A. (N.S.) 852. dictions the rules of court require the preparation of an index "to form the first page of the transcript." The plain purpose of this rule is to require the preparation of an adequate index, and to fix its position with reference to the other parts of the record, to facilitate the work of the court. Such designation of the place for the index is in its nature directory, and noncompliance therewith will vest no substantive right in the adverse party.5 132. Reporter's Transcript of Evidence.-The statutes, in some instances, provide for the filing of the transcribed manuscript of the shorthand reporter's notes of the evidence, and even in the absence of such a provision the transcribed report may be adopted by the trial judge as a correct statement of the evidence given on the trial by making it a part of the bill of exceptions. The transcript must, of course, be filed within the prescribed time, and if a party postpones or neglects to take his appeal and to order his transcript until so near the expiration of the prescribed period that it is physically impossible to complete the record in time, he does so at his peril.9 The transcript of the evidence does not become a part of the record by merely filing it in the clerk's office, but must, by reference, be embodied in the bill of exceptions, 10 and in order that it may become. a part of the bill of exceptions it must be filed in the clerk's office prior to its incorporation in the bill of exceptions by reference.11 A transcript of the evidence by the shorthand reporter not containing the name of the cause except by an indorsement on the outside, which is not in the handwriting of the reporter and is not referred to in the certificate, and not being identified in any other manner, is not sufficiently identified to become a part of the record, though inserted in the proper place in a skeleton bill of exceptions.12 In some instances the statutes provide for furnishing to the parties free transcripts of the shorthand notes of the evidence, but this is generally confined to criminal cases when the accused is without means, and one who has means will not usually be granted a free transcript, nor will one who does not intend to prosecute his appeal.13 5. Sexauer v. Star Milling Co., 173 Ind. 342, 90 N. E. 474, 26 L.R.A. (N.S.) 609. 6. Everman v. Hyman, 26 Ind. App. 165, 28 N. E. 1022, 84 A. S. R. 284; Winters v. Winters, 102 Ia. 53, 71 N. W. 184, 63 A. S. R. 428. 7. Cottrell v. Smokeless Fuel Co., 148 Fed. 594, 78 C. C. A. 366, 9 L.R.A. (N.S.) 1187. 8. Prescott Nat. Bank v. Head, 11 Ariz. 213, 90 Pac. 328, 21 Ann. Cas. 990; Smith v. Smith, 132 Ia. 700, 109 N. W. 194, 119 A. S. R. 581. 9. Smith v. Smith, 132 Ia. 700, 109 N. W. 194, 119 A. S. R. 581. 10. Pittsburgh, C. C. & St. L. R. Co. v. Redding, 140 Ind. 101, 39 N. E. 921, 34 L.R.A. 767. 11. Taylor v. Reger, 18 Ind. App. 466, 48 N. E. 262, 63 A. S. R. 352; Hinesley v. Sheets, 18 Ind. App. 612, 48 N. E. 802, 63 A. S. R. 356. 12. Joy v. Bitzer, 77 Ia. 73, 41 N. W. 575, 3 L.R.A. 184. 13. State v. Dewey, (Ia.) 136 N. W. 533, 40 L.R.A. (N.S.) 478. 133. Statement of Facts or Case Made.-In some jurisdictions a statement of facts, or case made, is the method provided by the statute for certifying to the appellate court the evidence adduced upon the trial, the rulings during the progress of the trial, and the exceptions thereto.14 Such statement of facts or case made is prepared by the appellant or plaintiff in error and served upon the opposite party, and if the latter is dissatisfied with it he may prepare amendments, or, under some statutes, may submit a counter case. 15 When the appellant makes out his statement of the case on appeal and the appellee accepts the same, the judge has nothing to do with settling the case.16 The case made should contain a statement that it contains all the evidence adduced on the trial, when the question of the sufficiency of the evidence is to be reviewed, and it has been held that a statement to that effect in the certificate of the judge which is attached to the case made is not sufficient.18 The case made should, of course, be filed and served as prescribed by the statute.19 Where a demurrer to the evidence is sustained, a motion for a new trial is neither necessary nor proper, and the fact that such a motion is filed will not enlarge the time within which a case may be made upon which to review the ruling on the demurrer.20 Where from the record entries it is uncertain as to the time allowed for filing the case, the doubt will be resolved in favor of the appellant so as to allow a hearing on the merits.1 Where no time has been fixed either by 14. Hoadley v. Savings Bank, 71 Conn. 599, 42 Atl. 667, 44 L.R.A. 321; Winston v. Burnell, 44 Kan. 367, 24 Pac. 477, 21 A. S. R. 289; Board v. Dill, 26 Okla. 104, 110 Pac. 1107, Ann. Cas. 1912B 101, 29 L.R.A. (N.S.) 1170; Cloe v. Rogers, 31 Okla. 255, 121 Pac. 201, 38 L.R.A. (N.S.) 366; Humphrey v. State, 3 Okla. Crim. 504, 106 Pac. 978, 139 A. S. R. 972; Saunders v. State, 4 Okla. Crim. 264, 111 Pac. 965, Ann. Cas. 1912B 766; Besso v. Southworth, 71 Tex. 765, 10 S. W. 523, 10 A. S. R. 814; Thornely v. Andrews, 40 Wash. 580, 82 Pac. 899, 111 A. S. R. 983, 1 L.R.A. (N.S.) 1036. 15. Horne v. Smith, 105 N. C. 322, 11 S. E. 373, 18 A. S. R. 903. 16. James v. Western N. C. R. Co., 121 N. C. 523, 28 S. E. 537, 46 L.R.A. 306. 17. Dupont v. Port Chester, 204 N. Y. 351, 97 N. E. 735, Ann. Cas. 1913C 1066, 39 L.R.A. (N.S.) 1167. A statement is sufficient which is to the effect that "the following evidence was introduced, same being all the evi dence introduced by both parties at the trial." American Steel & Wire Co. v. Coover, 27 Okla. 131, 111 Pac. 217, 30 L.R.A. (N.S.) 787. 18. Winston v. Burnell, 44 Kan. 367, 24 Pac. 477, 21 A. S. R. 289. 19. Bank of Commerce v. Baldwin, 14 Idaho 75, 93 Pac. 504, 17 L.R.A. (N.S.) 676; Girard Trust Co. v. Owen, 83 Kan. 692, 112 Pac. 619, 33 L.R.A. (N.S.) 262. The adverse party to a cause, upon whom a copy of the proposed statement of facts is served, is not entitled to notice of its filing under a statutory provision that it shall be filed and a copy served on the adverse party, and also that notice of the filing of it shall be served on all other parties who have appeared in the action. Bennett v. Supreme Tent of the Knights of Maccabees of the World, 40 Wash. 431, 82 Pac. 744, 2 L.R.A.(N.S.) 389. 20. White v. Atchison, T. & S. F. R. Co., 74 Kan. 778, 88 Pac. 54, 11 Ann. Cas. 550. 1. Western Union Tel. Co. v. Sights, |