Evins v. Murphy

Morphy, J. A certiorari was issued in this case at the last session of this court, on the appellant’s suggestion that the record was not complete. The deputy clerk of the court below certifies to us that, as appears by the certificate of the judge who presided .on the trial appended to the note of evidence taken down by him to serve as a statement of facts, there wer,e six pages of said statement of facts, but that after diligent search not only in the fifes of the suit but in his office, fie has been unable to find the first, second, third and fourth pages of said statement of facts. This court has repeatedly .said that they would not pass upon the merits of a cause unless the record contain all the evidence upon which it was tried below. Where it is not the appellant’s- fault that the record comes up in such a shape as to pre,elude an examination of it, he is entitled to some relief. Thus in the case of Porter v. Dugat where the judge below had mislaid his notes, and, consequently, was unable to make out a statement of facts, the case was remanded for a new trial, on the ground that the appellant cannot be deprived of his right of .appeal without his fault. 9 Martin, p. 121. It appears to us that the appellant in this case is entitled to the same relief. He should not suffer from the negligent manner in which ft /appears that the papers of the office were kept by the predecessor of tlie present clerk. The evidence missing is represented as important. Justice, in our opinion, requires that the case should be remanded for a •new trial. Spiane, for the appellant. Crow, T. J:L, and W. B. Lewis, contra. It is, therefore, ordered that the judgment of the District Court be reversed, and that this case be remanded, to be proceeded in according to law.