
    KIRK vs. McALLISTER.
    [BILL INEQUITY EOR FORECLOSURE OE MORTGAGE. ]
    1. Service of process or appearance necessary. — A decree in chancery cannot be sustained, on appeal by tbe defendants, unless tbe record shows that they were brought before the court, either by the service of process upon them, publication against them as non-residents, or answer or appearance by them.
    2. Contents 'of iransoript. — Papers which are not made exhibits to the bill or answer, nor referred to in the proceedings or decree, nor made part of the record by order of court, cannot he looted to for any purpose on appeal, though incorporated in the transcript by the clerk or register.
    Appeal from the Chancery Court at Mobile.
    Heard, before the Hon. N. W. Cocke.
    The bill in this case was filed, on the 29th June, 1861, by James McAllister, against Robert S. Kirk and Elizabeth A. Kirk ; and sought to foreclose a mortgage on a parcel of land in the city of Mobile. The mortgage was not made an exhibit to the bill; but a copy of it is set out in the transcript, before the clerk’s memorandum showing when the bill was filed, and also what purports to be a consent on the part of the defendants, in the following words : “We, Elizabeth A. Kirk and Robert S. Kirk, consent to the decrees and orders prayed for in this bill of complaint, and consent to such at the next term of the chancery court at Mobile, this 10th day of July, 1861.” Tbe decree of tbe chancellor, wbicb is next copied into tbe transcript, is as follows: “ In this cause, it is ordered and decreed, tbat tbe mortgage and note made by tbe defendants to tbe complainant be credited witb tbe sum of $773 96, tbe surplus of tbe purchase of said land and premises by tbe complainant at tbe sale made by tbe register in tbe suits by Barnard and Charles Frieke, at tbe date of said sale; and tbat tbe equity of redemption of said defendants, in said land and premises, be forever foreclosed; and tbat tbe title to said land and premises be vested absolutely in said complainant, by virtue of tbe said sale made by tbe register in tbe suits of Barnard and Charles Frieke, and tbat tbe complainant pay tbe costs of this suit.” Tbe chancellor’s decree is now assigned as error by tbe defendants.
    Geo. N. Stewart, for appellants.
    John Hall, contra.
    
   A. J. WALKER, C. J,

A decree was rendered against tbe defendants in tbe court below. It does not appear tbat there was any process issued against them, or publication against them as non-residents, or answer, or appearance by them, or a decree pro confesso against them, or any evidence adduced. Two instruments — a written consent by tbe defendants, and a mortgage — are copied by tbe register into tbe transcript before us. They are not noticed, or referred to, in tbe proceedings in tbe cause, or in the decree. Tbe record does not disclose tbat they were ever presented to tbe court, or tbat tbe register bad any authority to incorporate them in tbe record. It is well settled, tbat papers thus circumstanced are not parts of tbe record, and cannot be looked to on appeal in this court.—Cobb v. State, 19 Ala. 18; Thomason v. Odum, 31 ib. 108; Stodder v. Grant & Nickles, 28 ib. 410; Cantaline v. State, 33 ib. 439; Franklin v. Heard & Due, 31 ib. 516; Richardson v. State, 31 ib. 347. If papers so situated could be deemed matter of record, it would be in tbe power of tbe register at will to dictate and control tbe contents of tbe record, and tbe decision of tbe cause in this court.

The decree itself suggests tbe probability that it was based upon some consent, not made a matter of record, and upon some facts occurring after the bill was filed, which are not presented in the pleading; and it was so stated upon the argument. The bill, in the farther proceedings of the cause, will be probably improved by amendment and the addition of supplemental matter. It is therefore not necessary for us to notice the other points made upon the argument.

The decree was rendered without the bringing of the parties before the court, and without any authority discoverable from the record; and it is therefore reversed, and the cause is remanded. .  