
    Paul Park v. Sam’l Park.
    Sale oe Land. Affidavit of lost judgment. To whom to he made. It is error in the Circuit Court to condemn and order the sale of land levied upon by execution on a magistrate’s judgment, where the record of the judgment and the papers in the cause are lost, and supplied by the affidavit of the magistrate by whom it was rendered,.he being at the time out of office. In such cases the affidavit should be made by the incumbent then in office.
    Case cited: Chaffin v. Garret & Alderson, MS.
    Code cited: Sec. 3070 a.
    
    FROM POLK.
    No record found.
   Freeman, J.,

delivered the opinion of the court.

This is a motion to condemn land, and have order of sale under a levy from a justice of the peace of Polk county.

The only question is, whether the lost papers had been regularly supplied, under the act of 1859-60, T. & S. Code, sec. 3070 a. The affidavit of the original docket containing the judgment and the papers in the case, is made by McKissick, who was the justice in 1866 when the judgment was rendered. He had been succeeded by one Jesse Rymer. We held at Nashville, in the case of Chaffin v. Garret & Anderson, MS., that this affidavit must be made by the successor in office, as being the party entitled to the custody of the docket and papers. Adhering to this decision, the court erred in ordering a sale of the land, as the judgment was not supplied as required by law.

The case will be reversed and dismissed.  