
    BEARD ET AL. VS. POYDRAS.
    
    ArPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF POINT COUPEE, THE JUDGE OF THE SECOND PRESIDING.
    A certiorari will be refused, when it appears it is not in the power of the cleric to supply the defect in the record from documents in his office.
    If it appears the appellant has been without fault, and prevented by acts of the adverse party from bringing up a complete record, the court may, in in its discretion, send the case back for a new trial.
    
      When there is an agreement in the record that the case shall first be tried between the original parties, the warrantors need not be made parties to, the appeal.
    When the record is incomplete, the case may still be set down for argument on any bill of exception, or matters apparent on the face of the record.
    The plaintiffs in this case appealed from a judgment in favor of the defendant, Poydras. There were several persons called in warranty, but the parties entered into an express agreement of record, that the case be first tried and finally determined between the original parties to the suit, before proceeding against the warrantors.
    The clerk certifies that the record contains all the evidence adduced on the trial, except certain documents which he describes as having been introduced in evidence by the defendant, “ hut have never been filed in the case,” etc. It was objected to, on the part of the defendant, that the record was incomplete. A certiorari, to complete the record, was then applied for and refused.
    
      Lohdell, for the warrantors,
    moved to dismiss the appeal, because they had not been made parties and cited in the appeal, when they were made parties and appeared in the court below.
    
      L. Janin, for the defendant,
    moved also to dismiss the appeal, on account of various imperfections in the record, and for wTant of the warrantors being cited in the appeal.
    
      Preston, for the plaintiffs and appellants,
    argued to sustain the appeal, and showed that the imperfections in the record were occasioned by the defendant and warrantors, etc. He moved for further time to complete the record, and cite in the warrantors, etc.
    
      
       This opinion was delivered in April, 1838, and suspended until this term.
    
   Bullard, J.,

delivered the opinion of the coutt.

In this case we have considered the motion for a certiorari, to complete the record, and being of opinion that it would be doing a vain thing, inasmuch as it is not'Jn the power of the clerk to supply the defect from documents in his office, the motion is overruled. If we were satisfied that the appellants had been without fault, and that they had been prevented by the acts of the other party from bringing up a complete record, we might think ourselves authorized to send the case back for a new trial.

A motion has also been made to dismiss the appeal, on the ground that the warrantors are not parties. We think-the agreement in the record, that this case shall first be tried as between the original parties, takes it out of the general rule, and that it was not necessary to make the warrantors parties to the appeal. The motion to dismiss is overruled.

The case must, therefore, be set down for argument, on any bill of exceptions, or matters of law apparent on the face of the record, which the appellant may assign.  