Mayo v. Temple 16 Iowa 585

Mayo v. Temple.

Thursday, April 13.

IMPERFECT RECORD NOT SUFFICIENT GROUND FOR DISMISSING APPEAL.

To the transcript filed in this cause two certificates are appended one bearing date of April 1st, 1863, running as follows:

“State of Iówa, Lee County, ss: I, Charles Doerr, Clerk of the District Court in and for said county, certify that the foregoing pages» numbering from one to sixty-nine inclusive, contain a true and correct transcript of the record in the foregoing entitled cause, as the same now remains of record in said court; except of plaintiff’s instruction, in said cause, to which I cannot certify — the original instructions of plaintiff being missing or lost.” Witness my hand, &c.

The other bearing date the 5th of October, and running as follows;

“ State of Iowa, Lee County, ss: I, Charles Doerr, Clerk of the District Court of Lee county, Iowa, at Keokuk, do hereby certify that the annexed transcript in the above entitled cause, was prepared for the purpose of perfecting the appeal in said cause, just before the last term of the Supreme Court at Davenport, but was not then sent up, because, when I came to compare the same, several of the original papers could not be found, and I could not therefore certify the same to be a true copy. Said lost or missing papers have not yet been found, and I am still unable to give the usual certificate to this transcript ; but hereby state that so far as compared, I found same to be correct, and think the whole to be a correct and full transcript.”

In witness whereof I have hereunto, &c.

Appellant’s counsel moved the Court:

1. To dismiss the appeal because the transcript certified is imperfect.

2. To strike the transcript from the files “ because it is not the transcript provided for by law, and, because according to the clerk’s certificate, it is wholly imperfect.”

*586Ranldn for the motion.