
    Garber v. Morrison & White.
    Where a defendant in an action at law, claims that the judgment is not warranted by the evidence, ho should have such evidence embodied and properly certified by the judge, by bill of exceptions.
    It is no part of the duty of the clerk of the district court, to certify or set out the evidence oifered in a cause; and the appellate court cannot act upon a statement thus made by him.
    
      Appeal from the Marrion District Court.
    
    Tuesday, January 19, 1858.
    The petition and notice in this case, claim of. defendants, the sum of five hundred dollars, as money due upon a promissory note. There was an appearance, and plaintiff recovered judgment for the sum of six hundred and sixty-one dollars, sixty-two cents. Defendants appeal.
    
      
      J. E. Neal, for the appellants.
    W. H. & J. A. Seevers, for the appellee.
   "Weight, C. J.

The defendants seek to reverse this judgment — -first, because the amount recovered is greater than that claimed in the petition and notice; and second, because it is greater than the amount due upon the promissory note declared upon. The plaintiff concedes the first error, and offers to, and does, remit so much of the judgment as exceeds the sum of five hundred dollars.

"We are then left to consider the second ground assumed by defendant. The copy of the note attached to the petition, calls for six hundred and ten dollars and twenty-two cents, upon which plaintiff claims there is still due him the sum o'f five hundred dollars. There is no averment that any payment had been made upon said note. In another part of the record, we find this recitation of facts: Plaintiff introduced a note, upon which several payments were endorsed, and, this being all the evidence, the court rendered judgment for plaintiff, for the amount before stated.” If we can act upon these facts, it is manifest that the judgment rendered is for more than the amount due and owing upon the note so given in evidence. There is an insuperable objection, however, to treating this recitation as a part of the record. The matters referred to, appear to be nothing more than a statement by the clerk, being in no manner contained in a bill of exceptions. If the defendant, in an action at law, relies upon the fact that the judgment is not warranted by the evidence, he should have such evidence embodied, and properly certified by the judge, by bill of exceptions. It is no part of the duty of the clerk, to certify or set out the evidence offered, and we cannot act upon a statement thus made by him.

It is said, however, that the note thus introduced, is a copy of, and identical with, that attached to the petition. Granting this, the difficulty is, that the one so attached contains no endorsement of payment, whereas upon the one set out by the clerk, we find several. Without something more than is shown here, we cannot act upon these endorsements, as correct. The clerk has no right or power to thus put this court in possession of the evidence.

The judgment to the amount of five hundred dollars, is affirmed, except as to the excess recovered, the plaintiff paying the costs of this appeal.  