
    George Connolly v. John H. Martin.
    Xhe certificate oí the Clerk that “ the transcript contains a true copy of all the papers and documents filed and all the proceedings had, all the orders of court of record and all the evidence adduced by the parties on the trial of the cause, cannot be contradicted by an affidavit in the Supreme Court that the original citation to the defendant was among the papers when the judgment 5>y default was rendered and when the appeal was taken.M
    APPEAL from the District Court of Carroll, Snyder, J.
    
      Short & Pw'ham, for plaintiff.
    
      L. Selby, for defendant and appellant.
   Merrick, O. J.

This is a suit upon a promissory note. A judgment by •default was made final against the defendant, and he appealed.

A motion is made by the plaintiff and appellee to dismiss the appeal, on the ground that the record does not contain the original citation on which the action was commenced.

The Clerk, in his certificate to the record, certifies that the transcript contained a true copy of all the papers and documents filed, and all the proceedings had, all the orders of court of record and all the evidence adduced by the parties on the trial of the cause.

The defendant assigned as error the want of citation; after the transcript of appeal was made out and filed in this court, the certificate of the Clerk was produced in which he states that he finds he charged for making out the citation and verily believes that the citation issued. The plaintiff’s attorney has filed his affidavit in this court, wherein he swears that the citation was among the papers of the cause when the judgment by default was rendered, when the ¡statement of facts was made out, and when the motion to appeal was taken, and that (since the appeal) he pid the Clerk made diligent search for the citation in vain.

No application for a writ of certiorwi has been made. Being of the opinion that the certificate to the transcript of appeal cannot be corrected in the manner attempted in this case, we are obliged to take the certificate to the transcript as true, for the purposes of this trial. The motion to dismiss is therefore overruled.

In regard to the errors assigned, we have no evidence in the record that the ■citation was served upon the defendant. The citation being the foundation of the action, for the want thereof, in this case, the judgment of the lower court must be reversed.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment •of the lower court he avoided and reversed; and that this cause be remanded to the lower court to be proceeded in according to law, and that the appellee pay the costs of appeal.  