Macklin v. Ward

3 Ky. Op. 108, 1869 Ky. LEXIS 302

• Court: Court of Appeals of Kentucky
• Decided: April 22, 1869
• Status: Published

Opinion

Opinion of the Court by

Judge Peters:

By granting a rehearing this case stood in this court precisely in the condition that it stood in before any opinion had been delivered, and just as if no opinion had ever been delivered in the case by this court.

It appears in the record now before us that the original books and papers of the prison, kept while the hemp was being delivered by Macklin, and manufactured by Ward, were used as evidence on the trial of the case in the court below to show how the accounts stood between the parties.

It furthermore appears in the record now before the court that said original books and papers had been used on the trial aforesaid,'and that' an order was made by the consent of the parties to the following effect: That the penitentiary books and papers used in this trial be used in the'Court of Appeals without being copied.

These original books and papers 'as stated in an affidavit by T. N. Linsey, who says he has been counsel for Macklin from the commencement of the suit to the present time, are material to a proper understanding of the case, and are lost, that they were brought up to this court as a part of the record in this case, were in the office of the clerk of this court, and he believes were burned when the clerk’s office of the court was burned.

As these hooks and papers do not seem to be copied, and are not now on file, and consequently a part of the material evidence which was used on the trial of the court below cannot be produced here, this court cannot review that judgment on an incomplete record, and a very material part of the evidence not supplied.

This insuperable difficulty in the way of reviewing that judgment must be obvious, and consequently must result in an affirmance of the judgment of the court below. Judgment affirmed.