Welch v. H. M. Smith & Co.

Citations

• 65 Miss. 394

Syllabus

<p>1. Chancery Jurisdiction. Substitution of record in court of law. Case in judgment.</p> <p>W. brought an action of trespass against S., and there was judgment in the Circuit Court for the defendant. A bill of exceptions was duly made out and an appeal taken, but before transmission of the transcript to the Supreme Court the record and all papers connected with the case were burned. Thereupon W. filed a bill in chancery setting out that the record could not be substituted from memory; that the then presiding judge had retired from the bench; that a new action at law could not be brought because of the bar of the statute of limitations; and that the complainant, as plaintiff in such case, had meritorious grounds for an appeal. The bill asks that the Circuit Court be required to reinstate the ' case and to try the same anew. Held, that chancery has no jurisdiction to supply lost records of a court of law.</p> <p>2. Substitution of Record. Remedy in court of law. See. 2293, Code 1880.</p> <p>The remedy in such case is in the court of law, under Section 2293, Code of 1880, which provides that “when the record of any judgment has been lost or destroyed, the plaintiff may have the same substituted against the defendant, upon motion, and such notice to the defendant as is required in actions in the court in which such motion is made,” etc. And without this statute the Circuit Court has the power to restore its records, which have been lost or destroyed.</p> <p>3. Same. In court of law. Retirement of judge.</p> <p>And the fact that the judge who tried such case is no longer on the bench is no obstacle to a proceeding to restore the lost records, since the result of the proceeding must depend upon proof, and not upon the memory of such judge.</p>