
    CODY et al. v. FIRST NATIONAL BANK OF GAINESVILLE.
    1. Under the Supreme Court practice act, it is the duty of the plaintiff in error 'to bring up to this court those portions of the record which he specifies and which the court certifies to he material, and where the exception is to the grant of a new trial, and certain .specified parts of the record, because of the loss, of the same, cannot be certified and transmitted to this court, it will in their absence (unless the record actually before this court is manifestly sufficient to enable it to pass intelligently upon all the errors alleged) be presumed, in favor of a judgment granting generally a new trial, that if such omitted portion® of the record had been transmitted they would sustain' the ruling of the court and justify the grant of the new trial.
    2. Where it appears from the certificate of the clerk of the trial court that certain portions of the record which were specified in the hill of exceptions have been lost or mislaid, and for this reason cannot be transmitted, this court cannot, for the purpose of ascertaining the contents of such omitted portions, look outside of the record to papers filed here by counsel for the plaintiffs in error. To justify consideration by this court of lost records not sent up, copies of them must be established in the lower court and duly certified copies thereof transmitted in the manner pointed out by law.
    May 11, 1896. Argued at the last term.
    Practice in Supreme Court.
    
      
      E. P. Dams and J. B. Estes, for plaintiffs. Dean '& iHobbs, H. E. Perry and M. L. Smith, for defendant.
   Atkinson, Justice.

1. The writ of error in the present ease was from a judgment granting a new trial. When it was reached for consideration in this court, a motion was made to dismiss it upon the ground that certain portions of the record specified in the bill of exceptions, and ordered to be sent up, were not certified and sent up by the clerk. The portions of the record, upon the absence of which the motion to dismiss was predicated, were an amendment to the plaintiff’s • petition and the answer of the defendant. When the motion to dismiss came on for consideration, plaintiff suggested a diminution of the record, 'and moved to supply the absent record by the production of copies thereof certified by the clerk, alleging that the originals of the amendment and answer had disappeared from the office of the clerk. These facts were supported by affidavits of the clerk as to ■ the correctness of the copies, and likewise that the absent, records were not then in his possession, custody or control. There were also affidavits of counsel for plaintiff in error, showing that the absent papers were never iff their custody or control, and that they had no information of the absence of such parts of the record until served with the notice of the motion to dismiss the case on said account. Upon consideration of the cause, the court refused to dismiss the writ of error,, but affirmed the judgment for the following reason: Under the provisions of our law, the burden of proof is upon the plaintiff in error to show error in the judgment of which he complains. The presumptions are all in favor of its correctness. Under the practice which prevails in this court, it is the duty of the plaintiff in error to bring to this court those portions of the record which he specifies, and which the court below certifies to be material; and hence, where the exception is to the grant-of a new trial, and certain specified parts of the record, because of the loss of the same, cannot be certified and transmitted to tbis court, it will in tbeir absence be presumed, in favor of a judgment granting generally a new trial, tbat if sucb omitted portions of tbe record bad been transmitted they would bave sustained tbe judgment of tbe court. Tbis presumption, however, would not arise, if tbe record actually before tbis court be manifestly sufficient to enable it to pass intelligently upon all tbe errors alleged, and of itself negative the idea tbat tbe judgment was supported by those portions of tbe record which were absent. In sucb a case tbe court would proceed to tbe determination of tbe issues actually presented, without reference to tbe records which were absent.

2. Tbe motion of tbe plaintiff in error cannot be made effectual to supply tbe absent record. It appears from tbe certificate of tbe clerk of tbe trial court, tbat certain portions of tbe record, which were specified in tbe bill of exceptions, bave been lost or mislaid. Those portions of tbe record we find to be indispensable to tbe determination of tbe questions made in tbis case. Being lost, copies of them could not be transmitted to tbis court in tbe manner pointed out by law, and tbe law confers upon us no power, for tbe purpose of ascertaining tbe contents of sucb omitted portions of tbe record, to look to papers outside of tbe record filed here by counsel for plaintiff in error. Tbis court has no authority to establish papers lost before tbeir transmission here. Until they are certified and forwarded here by tbe clerk of the trial court, they -are no part of tbe records of this court, and hence if -they be lost prior to -tbeir transmission, proceedings should be taken to bave them ‘established in tbe trial court, in order tbat tbe clerk of tbat court could properly transmit copies to tbis court in tbe manner pointed out by law. Being unable then to consider tbe copies which were submitted by counsel for plaintiff in error as parts of tbe record, and being unable, from those parts of the record which are before us, to say that the court erred in -granting a new trial, the judgment is

Affirmed.  