Nicholls v. . Dunning

Smith, C. J., (after stating the case). From this narrative of facts it is manifest that the fault lies not at the door of the appellant, and that the inability to make up the record was in consequence of the absence of the original papers in the hands of the Judge who tried the cause. But that a proper effort had not been made to obtain their restoration a new trial might have been awarded, as intimated in the opinion upon the hearing of the former application, and upon the authority of the cases therein referred to. “ Our power,” say the Court, “is to cause the record to be sent up, and when there is none from which the transcript can be made, as is said in the Clerk’s return, it is obviously first required to have the original papers necessary to this end restored to the office; or copies of such as are destroyed or lost supplied and substituted in place of the originals, under the direction of the Court to which they belong. Until this is done, and the record then transmitted, no remedial action can be here had such as is demanded by the petitioner.” 'Upon this intimation, after numerous efforts by direct application to the Judge, a part of the papers has reached the *85 office, and this is a basis upon which the writ may be awarded. While it is attended with great inconvenience for a Judge to carry off the papers, or that they be sent to him because of his omission to act upon the appeal during the sitting of the Court, it has been so common a practice that we are not disposed to regard it as involving such culpability in counsel as to deny to the client a right lost by the action of the Judge, especially when not opposed. The writ will issue, and we reserve further action until the record is sent up, and it may be in so mutilated a form as not to warrant our determining the matter involved in the appeal. Writ granted.