delivered the opinion of the court.
Appellant made a motion to reverse the judgment appealed from, because the original papers from which the record should be made could not be found by the clerk, and appellant averred that they were lost by counsel for appellees. A rule was issued requiring appellees to show cause why the motion should not be sustained, and a commissioner was appointed to take testimony in the matter.
It was decided in the case of Quarles v. Hiern, 70 Miss. 259, 12 South. 145, that where original papers in a case have been lost through the fault of appellee, so that the record cannot be made up, and so that the merits of the cause cannot be known on the appeal, the court will reverse, in order that there may be a new trial. In this case there has been an entire failure to show by the testimony that appellees, or their counsel, lost the papers, of were in any way to blame for the clerk not being able to find them.
Therefore the motion is overruled.
Overruled.