
    Denson v. Thigpen.
    [74 South. 787,
    Division A.]
    Appeal and Ebeoe. Trial on record. Re-establishment of lost bond. Remand.
    
    Where the judgment appealed from finds no support in the record because it does not appear that any forthcoming bond, on which defendant appellant is a surety, was in fact executed, the case having been remanded to the docket, and continued so that plaintiff appellee might have a copy of the bond certified to the supreme court by the clerk of the court below, but counsel for plaintiff appellee has made no attempt to re-establish and have certified the bond alleged to have been lost since rendition of the judgment appealed from, counsel, in lieu of such a step, having made and filed an affidavit stating that he personally knows that such bond was executed and was before the trial court when judgment was rendered, the cause will be remanded to the docket, and continued for re-establishment of the lost bond in the court below under Code 1906, section 3173, and its certification to the supreme court, since the supreme court must try the cause by the record, and not upon statements of counsel not sustained thereby.
    Appeal from the circuit court of Jasper county.
    Hon. W. H. Hughes, Judge.
    Suit hy S. F. Thigpen against J. O. Denson. From a judgment for plaintiff, defendant appeals.
    The facts are fully stated in the opinion of the court.
    
      Byrd & Byrd, for appellant.
    
      C. W. Thigpen, for appellee.
   Smith, C. J.,

delivered the opinion of the court.

This cause was remanded to the docket at the last term, and in the opinion then rendered we said:

“The judgment appealed from finds no support in the record; for the reason that if does not appear therefrom that any forthcoming bond, on which appellant is a surety, was in fact executed. Counsel for appellee, however, states in his brief that snch ’ a bond was in fact given, so that we will remand the cause to the docket and continue it to the first call of same by Division A in March, 1917, in order that appellee may, if -he so desires, have a copy of the bond certified to this court by the clerk of the court below.”

The cause now comes on again to be heard, without any attempt having been made by counsel for appellee to re-establish and have certified to us the bond alleged to have been lost since the rendition of the judgment appealed from. In lieu thereof counsel for appellee has made and filed an affidavit stating that he personally knows that such bond was executed and was before'the court when judgment" was rendered. We must try the cause by the record, and not upon statements of counsel not sustained thereby., In event a bond was in 'fact executed and has been lost it can be re-established in the court below under section 3173 of the Code, and then certified to this court, so that, in order for this to be done, the cause will be remanded to the docket and continued.

Remanded and continued.  