delivered the opinion of the court.
In this case, the appellant moved for a mandamus against the judge, before whom the trial was had, directing him to make a statement of facts, or to show cause why he does not. The judge in his return shows for cause, for not making a complete statement of facts, that at the trial, both parties expressly waived the right of having the evidence taken down by the clerk, and he concluded from that circumstance, that a statement of facts, would not be called for; that he cannot recbllect the evidence, except so far as contained in his notes taken on the trial, which accompany the return ; and which he says, were taken merely for his own satisfaction, and to enable him to charge the jury.
The attorney for the appellant, applied to the plaintiff’s attorney, to agree with him on a statement of facts, in due time. It was declined and application made to the judge. A waiver of the right to have the evidence taken down by the clerk, is not, in our opinion, a waiver of the right to have a statement of facts, so as to enable the party to prosecute an appeal. The record does not furnish us such a statement of facts, as the Code of Practice requires, and the case cannot be examined in this court, on the merits. Justice requires, that it should be remanded for a new trial.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed, the verdict set aside, and the case remanded for a new trial, and that the appellee pay the costs of the appeal.