Hagan v. Gaunt

Land, J. This is a suit on an injunction bond for the recovery of damages. There was judgment against the defendant and his surety, in solido, for the sum of twelve hundred dollars, and they have appealed. The evidence on which the case was tried, is not all in the record. On the trial below, the plaintiff offered in evidence the suit of Wm. Gaunt v. Wm. Hagan, in the Third District Court, and the proceedings in the matter of Thomas Barrett & Co. v. Their Creditors, also in the Third District Court, together with the appraisement of the property by the appraisers, — but the Clerk certifies that none of these documents had been furnished, or filed in this suit, prior to the date of his certificate. The suit of Gaunt v. Hagan was the injunction suit, in which the bond was given, and the suit itself, and especially the judgment therein, is material evidence ; in the absence of which the judgment of the lower court, in this case, cannot he affirmed, nor satisfactorily revised by us, and corrected, if erroneous. It was the duty of the plaintiff, who offered these records in evidence, to have filed with the Clerk certified copies of the same, and his failure so to do is a fault which cannot be imputed to the defendants and appellants. A writ of certiorari would not enable the appellants to complete the record, and a dismissal of the appeal would be to them, perhaps, a denial of justice. It therefore becomes our duty to reverse the judgment, and remand the cause for a new trial. It is, therefore, ordered, adjudged and decreed, that the judgment he reversed, and that the cause be remanded to the lower court for a new trial, and that plaintiff and appellee pay the costs of this appeal.