99 Ga. 405 | Ga. | 1896
1. The writ of error in the present ease was from a judgment granting a new trial. When it was reached for consideration in this court, a motion was made to dismiss it upon the ground that certain portions of the record specified in the bill of exceptions, and ordered to be sent up, were not certified and sent up by the clerk. The portions of the record, upon the absence of which the motion to dismiss was predicated, were an amendment to the plaintiff’s • petition and the answer of the defendant. When the motion to dismiss came on for consideration, plaintiff suggested a diminution of the record, 'and moved to supply the absent record by the production of copies thereof certified by the clerk, alleging that the originals of the amendment and answer had disappeared from the office of the clerk. These facts were supported by affidavits of the clerk as to ■ the correctness of the copies, and likewise that the absent, records were not then in his possession, custody or control. There were also affidavits of counsel for plaintiff in error, showing that the absent papers were never iff their custody or control, and that they had no information of the absence of such parts of the record until served with the notice of the motion to dismiss the case on said account. Upon consideration of the cause, the court refused to dismiss the writ of error,, but affirmed the judgment for the following reason: Under the provisions of our law, the burden of proof is upon the plaintiff in error to show error in the judgment of which he complains. The presumptions are all in favor of its correctness. Under the practice which prevails in this court, it is the duty of the plaintiff in error to bring to this court those portions of the record which he specifies, and which the court below certifies to be material; and hence, where the exception is to the grant-
2. Tbe motion of tbe plaintiff in error cannot be made effectual to supply tbe absent record. It appears from tbe certificate of tbe clerk of tbe trial court, tbat certain portions of tbe record, which were specified in tbe bill of exceptions, bave been lost or mislaid. Those portions of tbe record we find to be indispensable to tbe determination of tbe questions made in tbis case. Being lost, copies of them could not be transmitted to tbis court in tbe manner pointed out by law, and tbe law confers upon us no power, for tbe purpose of ascertaining tbe contents of sucb omitted portions of tbe record, to look to papers outside of tbe record filed here by counsel for plaintiff in error. Tbis court has no authority to establish papers lost before tbeir transmission here. Until they are certified and forwarded here by tbe clerk of the trial court, they -are no part of tbe records of this court, and hence if -they be lost prior to -tbeir transmission, proceedings should be taken to bave them ‘established in tbe trial court, in order tbat tbe clerk of tbat court could properly transmit copies to tbis court in tbe manner pointed out by law. Being unable then to consider tbe copies which were submitted by counsel for plaintiff in error as parts of tbe record, and being unable, from
Affirmed.
