
    Tomlinson v. Funston.
    Where the answer to a bill is not sent up with the transcript of the record, the respondent will not be permitted to file another answer; but where it properly appeal’s that such answer is lost or destroyed, and that the defence therein set forth is substantial, the cause will be continued, in order to give the court below time to supply the lost record.
    In Equity, from Jackson District Court.
    
    On motion to file an answer to the bill.
    
      J. P. Cook, F. A. Chenoweth, for the motion.
    
      Mr. Drummon, contra.
   Opinion by

Hastings, C. J.

A motion is made in behalf of appellant, for leave to answer over or file with the record in this ease an answer, (or the substance thereof,) which, it appears from the return of the clerk of the court below, is not on file in his office.

In support of this motion is presented an affidavit of one of the solicitors for appellant, that an answer disclosing a meritorious defence, was on file in the court below, on the hearing.

If the answer had ever been on file in this court, and was lost or destroyed, we would not hesitate to permit a copy to be filed as a substitute, and the contents of such lost record to be proved by affidavits and other testimony.

This court has no control over the records of the court below. That court is alone authorized, at its discretion, to provide substitutes for lost or destroyed records. It does not appear from the affidavits that the answer is lost or destroyed, but that it is not on file. No diligence appears to have been used to ascertain the fact of its loss or destruction. If the appellants show the loss or destruction of the answer, that the answer set up a substantial defence, and specify in what that defence consisted, we would not hesitate to continue the cause, to give the court "below time to supply the lost record.

Motion overruled.  