Boler v. Day

Simon, J., delivered the opinion of the court. The appellee filed a written motion to dismiss this appeal, on the ground that the transcript does not contain the records [253] of the case, sufficient for this court to revise the judgment, complained of. This is an action of slander, in which the verdict of the jury was given in favor of the defendant, and the plaintiff, after having vainly attempted to obtain a new trial, took the present appeal. The clerk, in one of his certificates annexed to the record, certifies that the testimony of several witnesses whom he names, and which had been taken down by him, was lost from the papers in open court, together with the answer filed by the defendant, and on a careful examination of the record, we find that a part of the evidence taken down by the clerk is copied in the transcript, but that there is no statement of facts, and nothing to show that the clerk was required to take down the testimony adduced by either of the parties. In this imperfect state of the case, it is certainly impossible for us to revise the verdict of the jury and the judgment of the court, rendered thereon; the appellant, however, has made application that the case be remanded, but he has made no showing to that effect. Had he made a motion for a certiorari, it would have been useless, as the answer and a part of the parole evidence appear to have been lost, and from the evidence which the record shows, it does not. appear to us that justice requires that this cause should be remanded for a new trial. It is, therefore, ordered, adjudged and decreed, that this appeal be dismissed, with costs.