
    LOVETT v. ZEISS.
    (Court of Civil Appeals of Texas.
    Dec. 22, 1910.)
    Appeal; and Error (§ 654) — Substitution op Paper poe Lost Assignment op Ekboes.
    A motion, in effect, to have the appellate court substitute a paper for the original assignment of errors, of which it is alleged to be a copy, and which is alleged to have been lost or misplaced, can be granted only on appellee agreeing that the paper may be considered as part of the record in the appellate court; otherwise, the substitution must be in the trial court, on the showing required by Rev. St. 1895, arts. 1498-1501.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 654.]
    Appeal from District Court, Liberty County; E. B. Pickett, Jr., Special Judge.
    Action between T. W. Lovett and W. J. Zeiss. Lovett, who appealed from the judgment, makes a motion to correct the record.
    Overruled.
    J. F. Dabney, for appellant H. E. Marshall, for appellee.
    
      
      For other cases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   REESE, J.

Appellant files this motion to correct the record by filing in this court a certified copy of an assignment of errors that was filed in the trial court December 20, 1910, some months after the record, without any assignment of errors, was filed in this court. It is set out in the motion that, before taking out the record for filing in this court, appellant filed with the district clerk his assignment of errors in words and terms substantially as contained in the assignments of error presented with his motion, but by some mischance, error, or mistake the same became misplaced or lost, and was not incorporated in the record. The clerk certifies that the paper attached to the motion is a true copy of the assignment of errors filed in his office by appellant December 2Q, 1910.

Appellant’s motion is really to have this court substitute the paper attached to the motion for the original assignment of errors, of which it is alleged to be a copy, and which is alleged to have been lost or misplaced. This substitution can only be had in the trial court, unless it is agreed by ap-pellee that the paper may be considered as part of the record in this court. In order to authorize such substitution in the trial court, it must be established that the copy offered is a substantially correct copy of the original, and that the original was filed in the trial court within the time required by law. This court cannot pass upon these issues of fact. Rev. St. 1895, arts. 1498-1501.

Counsel for appellee simply says,, in accepting- service of the motion, that he does not know anything about the matters alleged. The.district clerk in his certificate throws some doubt upon the filing of any assignment of errors before the transcript was taken out.

The motion must be overruled.

Overruled.  