Mr. Justice Benson
delivered the opinion of the court.
1. The defendant insists that, since the order appealed from is a matter of record, no bill of exceptions is necessary, and that therefore the plaintiff is not entitled to have the testimony of the trial certified. However, upon appeal from an order granting a new trial, this court must have the record of the former [156]*156hearing before it, to determine whether or not there was any error therein which would justify the order vacating the judgment. Article VII, Section 3, of our state Constitution, gives every litigant the unqualified right to have the whole testimony attached to a bill of exceptions upon appeal. The demurrer is overruled and a peremptory writ ordered.
Peremptory Writ Ordered.
Mr. Justice Eakin absent. Free access — add to your briefcase to read the full text and ask questions with AI