dissenting. I am not prepared to relieve the appellant under the circumstances. The testimony taken in writing, having been lost or mislaid, the defendant, it seems to me, should have called upon the district judge, contradictorily with the opposite party, to supply the lost evidence by a statement of it. If the judge was unable to make a statement, or if he having made a statement, this court, upon a proper showing, should find any reason to suppose that the statement was defective, there would then have been presented a case for the equitable interference of the court by opening the judgment, and remanding the cause for a new trial.