dissenting.
I cannot agree with my associates in the conclusion reached in this case, in holding that the trial court erred in the exclusion of the testimony of plaintiff in error offered on the trial of this cause.
By reference to the stipulation it may be seen that the testimony of Spielman might be used and given in evidence in the trial. There is no intimation in the record anywhere that the copy of the testimony was the especial property of the plaintiff in error, that it had been procured at his expense, or that it was not the property of the defendant in error, nor procured at the joint expense of both. It was stipulated that this testimony might be used in the trial. Not by plaintiff in error to the exclusion of defendant in error, but rather by either party to the action. For aught that appears, and in support of the holding of the trial court, we must presume, and a proper construction of the stipulation must be, that either party had the right to use this testimony. At the commencement of the trial defendant in error asked permission to see this testimony, presumably that he might use it,, or perhaps to examine it to ascertain whether or not he desired to exercise his right to introduce it. He was refused the use of it, which by the stipulation, was his right. The court was asked to order the production of the testimony. Upon a full hearing, and presumably upon a full knowledge of the facts, he ordered plaintiff in error to produce • the desired paper. This order was conditional, easy to be complied with, reasonable, and no doubt just. The application appealed to the discretion of the court. It must be presumed, in the absence of a contrary showing, that the order of the court was based upon sufficient evidence. It would be a waste of time here to cite the many and uniform decisions of this court to the *350effect that error will never be presumed — it must affirmatively appear. Nothing is here to show what the evidence upon which the court acted was. But were it otherwise, I think a decision which would deprive a trial court of the necessary and proper discretion in such a case would be wrong. I cannot see how it can possibly “ affirmatively appear ” that the court erred in making the order.
After, the order was made, plaintiff in error, with full knowledge that he could not introduce the testimony without a compliance, defied the court and its order and refused to allow an inspection of the testimony. If the order was right, which it must be presumed to be, the court did right in enforcing it. When the time comes that an order of court, made in a case then on trial, concerning documents and instruments to be used in evidence, and to which the parties by their stipulation are equally entitled, may be promptly reversed and nullified by one of the parties to the action, and the authority of the court be thus ignored, it will then be time for the judge to vacate the bench and seek some other field of labor.
Again, there is nothing in, on, or about the offered testimony, anywhere, to show that it is the testimony of plaintiff in error “given on the trial of this case in March, 1883,” or at any other time. It is headed with the words, “ Direct examination of Benjamin Spielman by Mr. Mc-Allister,” and is followed by the words, “This is all of the testimony of Benjamin Spielman,” and to which the name of the court reporter is added in print by type-writer. When the testimony was taken, in what court, or in what case nowhere appears. As to whether Mr. Wheeler was court reporter at the time he made the copy, or whether he copied it from the records of his office nowhere appears. For the purposes of . this case we may admit all that is said in the opinion of the majority as to the reports of the evidence being records, and that duly certified copies may be used, etc., and that they are entitled to all the credit of *351certified copies of any records. But how is this copy certified? It cannot be claimed that E. M. Battis copied it, for it is shown affirmatively that it is copied by Mr. "Wheeler. If it is “ duly ” certified by him, that certificate is all included in the words “copied by.” Again, this “certificate,” if such it is, is not signed officially, no official title being used. Suppose in a case on trial it should be stipulated that a judgment of a court between the parties might be “used or given” in the trial, but instead of the judgment a party presents a copy of a judgment which failed to show the parties between whom it was rendered, and instead of the usual official certificate as to its genuineness, etc., it should be followed by the words, “ copied by John Doe,” without any [suggestion of official character on the part of the copyist. Would it be treated by any court as a. “duly certified copy” of the judgment referred to in the stipulation? If so I confess that my reading has been at fault.