Holland v. Buckner ( 1873 )

Opinion by

Judge Peters:

Counsel for appellants, in their petition for. a rehearing in this case, say they were very much surprised to see from the opinion of this court, that the judgment of the court below was affirmed on the ground that no reply had been made to the counterclaim, and further say that it was a mistake, and that a reply was filed controverting all the material allegations of the counterclaim. This court can only know what pleadings were filed in the lower court from what appears in the certified transcript presented to it, and such amendments as may be certified and sent up.

The copies of the records on the first and second appeals to this court have been examined with care for the reply, and for the order noting the filing thereof, and in neither of which can a reply be found, nor an order of the court showing that any was filed. And then the index to each record was examined to see if the clerk had made any reference to such a pleading, but no such reference can be found.

Petrie & Little, for appellants. -, for appellee.

Besides, when counsel saw the opinion and learned the reason for the affirmance, it is a strange omission not to apply for a certiorari and have a copy of the reply certified to this court by the clerk of the lower court. Without the best, or at least satisfactory legal evidence that the important paper was filed and constitutes a part of the record, this court cannot act judicially.

Wherefore the petition is overruled.