Griffith v. Miner

Martin, J., delivered the opinion of the court. The plaintiffs and appellees in this case, have prayed, that the appeal be dismissed, on the following grounds : 1. That the transcript had not been filed on the first day of the term, which was the return day thereof. 2. That the clerk’s certificate is insufficient. 3. That an important document, viz: the answer of the defendant is missing, and made no part of the record. The appeal was made returnable on the first Monday of October, 1834. On that day none of the judges attended. The roads were so much obstructed by the fallen timber, occasioned by the late storm, that rendered an attendance on the first days of the court, impossible. The clerk adjourned the court until the second day, when one of the judges arrived, who adjourned over until Wednesday, when all the judges were present in court, and which was the first judicial day. The transcript in the present case, was filed on the succeeding day, which was Thursday, and the second judicial day of the term. On this day, leave was asked and ' [350] given, to file the transcript, but the counsel for the appellees, who was present, observed, that he reserved to himself the faculty of showing that the transcript was irregularly filed, According to rf^th? Code °of peUantbasteree days within record after5 the return day of the cause shown riod,m he'S may timeto firing ?t up. afteiuhe^xpirai appeiiee^is enti.üed to the clerk’s certificate to that effect,if thereoSTcausí'diownt as days ofgrace^ appellant must showcaSetotee ex i ration of tiie grace, ifümreí cord fie not filed or cause shown, the appellee has tives: he may certificatee^eiand proceed to^ the judgment or he S>rd fil¿dh have the judgment affirmed; andlastly, have the ap- may firing up and file tlie record, after the expiration of the three days of grace, and without showing cause, if the appellee has not availed himself of any of the alternatives allowed him, in case of the failure of the appellant to file it, within the three days grace. [350] The Code of Practice, article 883, allows to the appellant, who has not filed the record within the three days, after which thq appellee is entitled to the clerk’s certificate, the faclllty within these three days, to obtain, on cause shown, further time to bring up the transcript, In the case of Rost vs. St. Francis church, 5 Martin, N. S. 191 this court considered the three days, after which the appellee is entitled to the certificate of the clerk, as days of grace, within which the appellant may file the transcript, Until these days have elapsed, the Code of Practice does not seem to authorise any steps to be taken by the appellees, in relation to the disposition of the cause. After the expiration of this period, or that of any particular time, which the appeliant may obtain from the court, the appellee has three alter- . , , , ,. ,. - , . . , natives: he may proceed to the execution of his judgment, by obtaining the clerk’s certificate; he may require the affirmance of the judgment, and lastly, require the dismissal of the appeal. Ibid. 884. But the Code of Practice requires, before he proceed to. the exercise of the two last alternatives, t'iiat lie should bring up the transcript of the record. Ibid. 590. In the latter case, the dismissal is to be claimed, as if the record had been brought up by the appellant, and jt is contended, excludes the neglect of the appellant 5 ’ ° rr to bring the record, from the causes which authorise the dismissal of the appeal. We are not dissatisfied with the decision, in the case of Rost vs. St. Francis church. When an act is to be done within a given time, as the filing of an answer, and the like, it may be done afterwards, if nothing occurs which prevents Thus, if a judgment by default has not been taken, an , J •. i*i u answer may be put m to the merits, although more than ten days may bave elapsed, from the service of citation. We are, therefore, of opinion, the transcript of the record , . _ WEIS filed ÍH time. form'praotíce'of die ^ Supreme without the fault !)e placed before it, to have a revision of the iSfS“co^ton th,e and when justice requires it, to re-for a'new6trial?0 The certificate of the clerk, attests the correctness of the transcript, so far “as the documents and evidence now appear among the records of the office.” It appears from the face of the transcript that the officer who subscribes the certificate, is of late appointment, who did not hold the office at the time the cause was tried. There is, however, a certificate of the judge, attesting that the record contains all the evidence given to the jury. It is, however, admitted, that an important document is missing, viz: the original answer of Miner. An effort has been made to obtain a copy, and have it used on the trial in this court; and the clerk has certified, that the original is lost. This circumstance has been urged, as a ground for a claim, to have the appeal dismissed, because the appellant has not brought up such a transcript of the record, as will authorise this court, to revise the judgment appealed from. As no fault or neglect can be attributed to the appellant, we cannot see any reason to dismiss the appeal, on account of an accident, over which he had no possible control. The appellee has urged his inability, to proceed in the hearing of the case on its merits, without this document. As there is no legal means, by which evidence of its contents may be directly brought before us, no other steps can be resorted to, than to remand the cause to the tribunal, in which evidence of the contents of this missing document, may be legally received. This requires the reversal of the judgment. Such has , .. „ . . ° . been the uniform practice of this court, that whenever, without the fault of the appellant, a case cannot be placed before it, in such a manner, as to enable the court to revise , . , tne judgment of the inferior tribunal, and when justice requires it, to remand the case for a new trial. M’Daniel vs. Insall, ante 241. 9 Martin, 92. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, the verdict set aside, and the case remanded for a new trial; the plaintiffs and appellees paying costs in this court.