Stafford v. Harper

[1077] Oh Motion to Dismiss Appeal. The opinion of the Oourt was delivered by Todd, J. This motion is made by the plaintiff and appellee on grounds substantially as follows : That he (plaintiff) had offered in evidence on the trial of the cause in the court below certain records pertaining to proceedings in another case, which records were not copied into the transcript. The record discloses that this evidence was offered by the plaintiff, but was not produced and filed by him during or after the trial. It was his duty to have done so. The appellant endeavored by a writ of cer-tiorari to supply this missing evidence, but plaintiff complains that it has not been done in the return made to this writ, and upon this claims the right to have the appeal dismissed. We do not see that the appellant is in fault. On the contrary, the omission complained of is directly attributable to the appellee himself, and as was well said by this Oourt in a case presenting a similar state of fact, “it would be unjust to permit him, appellee, to derive any advantage from a state of things he was instrumental in producing. 4 A. 276. See, also, 13 L. 82 ; 4 R. 325 ; 10 R. 387 ; 1 A. 40, 276. The absence of this evidence compels us to remand the case. It is, therefore, ordered, adjudged and decreed that the judgment appealed from be set aside, and that this case be remanded to the lower court for a new trial, and to be proceeded with according to law, appellee to pay costs of appeal.