Welch v. H. M. Smith & Co.

Arnold J. delivered the opinion of the Court. Sec. 2293 of the Code provides that “ when the records of any judgment or decree have been lost or destined, the plaintiff or complainant, or other person interested therein, may have the same substituted against the defendant therein, upon motion, and such notice to the defendant as is required in actions or suits in the Court in which such motion is made; and such judgment or decree, when substituted, shall have the same force and effect as before the loss or destruction of the first record thereof. ” The remedy of appellant was under this section, and in the Circuit Court, where the cause was pending. He should have made such copy of the lost record as he could, and then entered a motion in the Circuit Court, asking that the copy be filed and substituted for the original. After notice to the defendant, and hearing the proof, the Court should have sustained the motion, if the facts warranted it in doing so. If appellant had been unable to show substantially what the contents of the lost record were, it would have been a misfortune which resulted from defective proof, rather than from a want of power in the court to administer relief. [397] The fact that the judge, who tried the case, is not now on the bench, is no obstacle to such proceeding, since, if the record is restored, it must be done on proof, and not upon the memory or recollection of the judge who tried the case. Without the statute quoted, the Circuit Court has power, on proper proof, to restore its own records which have been lost or destroyed. It is a power inherent in all courts of record. Freeman on Judgments, Sec. 89; Bowman v. McLaughlin, 45 Miss., 461. But one court has no authority to replace the lost record of another court. The power to do so resides exclusively in the court where the last record was made. Equity has no jurisdiction to supply the lost record of a court of law. Pomeroy Eq. Jur., Sec. 821; Freeman on Judgments, Sec. 89. Affirmed.