
    Williams v. Capital Mining, Lumber & Oil Co.
    (Decided February 4, 1913.)
    Appeal from Magoffin Circuit Court.
    Appeal — Transcript—What Should Not Be Copied Into. — The clerk should not copy into the transcript a paper not a part of the record, when the case was heard in the circuit court; and if it is copied, it will be stricken out.
    BYBD & HOWAED and S. M. NICEjELL, for appellant.
    JOHN H. GAKDNEB, for appellee.
   Opinion by

Chief Justice Hobson

on Motion to Condemn Record.

In the petition patent No. 36572 isi set np and it is alleged that tbe patent is. filed; therewith as part thereof; but when the. ease was heard in the Circuit Court the patent was not in the record. It was afterwards found by the attorney for the plaintiff .and copied by the clerk in the transcript at 'his request. The case must be tried here on the same record as 'in the Circuit Court. If the copy of the patent was in fact filed with the petition and lost from the record thereafter, it may be supplied by a proceedinig for that -purpose in the Circuit Court, but the clerk was without authority to copy in the transcript a paper not in the record, until the record was supplied. The copy of the patent is stricken from the record.  