A. W. WATSON, JR. AND MARTHA CAROL SMITH, APPELLANTS,
v.
SALLIE WILLIAMS, APPELLEE
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The appellate court reviewed a circuit court's order striking certain paragraphs from appellants' Directions to the Clerk, concerning interrogatories and deposition materials. The court partially reversed the lower court's striking of deposition references, ruling that while some paragraphs were properly struck, pages 21-22 of a deposition that the trial court actually relied upon must be included in the record on appeal.
The court held that the trial court was correct in striking paragraphs 4-7 containing interrogatories that were never tendered nor received in evidence. However, paragraph 8 was erroneously struck entirely, and pages 21-22 of Martha Carol Smith's deposition should be included in the record on appeal because the trial court itself relied upon and quoted from those pages in its final decree.
“interrogatories and answers thereto, were obtained from the plaintiff and the defendants, which are designated by the appellants in their Directions to the Clerk as paragraphs numbered 4, 5, 6 and 7. At the final hearing of the cause, the interrogatories were not tendered nor received in evidence, and therefore are not judicially before the court merely because they were filed.”
Establishes the principle that discovery materials must be formally introduced into evidence to be part of the judicial record.
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Join FLexlaw to unlock all legal intelligenceAppellants Watson and Smith sought review of an order striking paragraphs 4, 5, 6, 7, and 8 of their Directions to the Clerk. Paragraphs 4-7 contained…
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ON MOTION TO REVIEW
Appellants have filed their motion to review an order of the Circuit Court striking certain paragraphs of the appellants’ Directions to the Clerk.
It appears that certain interrogatories and answers thereto, were obtained from the plaintiff and the defendants, which are designated by the appellants in their Directions to the Clerk as paragraphs numbered 4, S, 6 and 7. At the final hearing of the cause, the interrogatories were not tendered nor received in evidence, and therefore are not judicially before the court merely because they were filed. Therefore, the trial court was correct in striking said paragraphs 4, 5, 6 and 7 of said Directions.
As to the eighth paragraph of appellants’ directions to the Clerk, it also appears that the depositions of the appellants were not filed in evidence before the court, but reference to certain portions of the deposition of the appellant, Martha Carol Smith, was made by appellee counsel at the final hearing, particularly as to pages 21 and 22 thereof. The appellee’s counsel read from said deposition, which was quoted in the court reporter’s transcribed notes as being a quotation from said deposition. The trial court, however, in its final decree, apparently treated said deposition or at least pages 21 and 22, as if the same had been introduced in evidence, when he used in subparagraph (7) of his final decree, the following language: “ * * * as she testified at the final hearing and on pages 21-22 of her deposition * * * ” It thus appearing that the trial court was in fact quoting from the deposition of Martha Carol Smith, pages 21-22, we are of the opinion, and so hold that the appellants’ direction to the clerk,
*227as contained in paragraph 8 thereof was erroneously stricken in toto, but that pages 21 and 22 of said deposition should be included by the Clerk of the Circuit Court in making up his record on appeal.
Appellants’ motion is therefore denied in part and granted in part.
Appellants’ motion for extension of time within which to file their brief is hereby granted and the appellants allowed thirty days within which to file their brief.
JOHNSON, C. J., and CARROLL, DONALD IC„ and WIGGINTON, JJ., concur.
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