*422ON REHEARING.
Rothrock, Ch. J.I. Within the proper time after the filing of the foregoing opinions in this cause a petition for rehearing was presented. A re-argument was ordered and the cause has again been submitted for our consideration. We have again carefully examined the original arguments in connection with the arguments upon the rehearing, and a majority of the court are satisfied that the former opinion, reversing the decree of the court below, is correct.
It is again insisted that a new trial was properly granted under subdivision 7 of section 3154 of the Code, for “unavoidable casualty or misfortune preventing the party from prosecuting or defending. ”
We desire to add but little to the former opinion upon that branch of the case. The unavoidable casualty or misfortune refers to something which transpired before the judgment was-rendered which prevented the party from prosecuting or defending the action. It has no reference to prosecuting or defending an appeal from the judgment.
II. It is again urged that the granting of a new trial tp supply the lost evidence was within the general equity powers of the court. In our judgment the fundamental error in this petition is that it ignores the rights of the successful party in the original action. However innocent he may have been in the matter of the loss of the evidence, it is claimed his decree should be set aside, and a new trial granted, to enable his adversary to supply the lost evidence. If the only effect of such new trial were to supply the lost evidence, the judgment of the*court below might not be objectionable. It would leave the decree intact, to be reviewed upon appeal. But it does more than this. Upon the granting of a new trial, amendments may be made to the pleadings, new issues may be framed, and new evidence introduced; in short, the former decree must be ignored, and stand for nothing.
*423It is urged that the ease is exceptional, and that the lost evidence cannot be supplied by substitution, because there is nothing from which to substitute.
The substitution of lost papers is an every-day practice in the courts of this State, and where no copies have been preserved it is usual, at least in case of lost pleadings, to allow substitution of others containing the substance of those which have been lost. It frequently occurs that, upon appeal to this ■ court, some part of the record has been lost or mislaid. In such cases the practice is, upon a sufficient showing, to continue the appeal until a motion can be made in the court below to complete the record by substitution. It is not for this court to judicially determine that this cannot be done in any case.
The question is not before us for determination, and we do not decide it, but we can see no good reason why the court below, upon a sufficient showing, may not in any case order the evidence to be retaken if necessary to complete the record for the purpose of a trial upon appeal in this court. It is certain that courts possess the most ample powers to preserve their records, and to supply those which are lost or destroyed. But this power is radically different from setting aside decrees and judgments, and granting new trials.
We are asked to retain this cause, suspend the original decree, and direct that the evidence be retaken. This would be of no avail to the appellee. He withdrew his appeal more than two years ago. As we hold the loss of the evidence was not a sufficient cause to set aside the décree and grant a new trial, and that the decree is still in full force, there is no power or jurisdiction in this court to extend the time for taking an appeal.