Ross v. Stockwell

46 N.E. 360, 17 Ind. App. 77, 1897 Ind. App. LEXIS 72

Opinion

Henley, J.

Appellee in this cause files an application for a writ of certiorari, supported by affidavit. It appears, from the application and from the several affidavits filed in its support, and also from the affidavits filed by the appellant, who resists the granting of such writ, that the pleading, or that part of it which the appellee seeks to bring into the record by certiorari, is lost and is not now upon the files in the clerk’s office of Monroe county, Indiana.

We do not think appellee has proceeded properly in the matter. A lost pleading must, by order or leave of court under the proper proceeding therefor, be first substituted in the lower court before this court can by writ of certiorari bring such pleading into the record. Burkam v. McElfresh, 88 Ind. 223.

Elliott, in his work on Appellate Procedure, section 596, says: “If pleadings are lost they must be substituted below, and to accomplish that office the proper proceedings must be- there prosecuted. After substitution, pursuant to the order of the trial court, they may be brought into the record on appeal by certiorari.” '

It follows, from what we have said, that this application must be denied.

Application denied.