The appellee has moved to dismiss this appeal, on the grounds that the certificate of the clerk is insufficient and incomplete, and the transcript does not contain all the evidence and documents adduced on the trial.
The certificate of the clerk is as follows: “ I, Wm. Woelper, clerk of the Sixth District Court, do hereby certify that the above and foregoing eight hundred and thirteen pages do contain a true and correct transcript of all proceedings had, as well as of all documents filed and evidence adduced on the trial of the cause wherein Daniel Mulligan is the plaintiff, and City of New Orleans is the defendant, instituted in this court, and noio of the records thereof, under the No. 77, with the exception of the certificate of Mount, City Treasurer, and certificates Nos. 302 and 303, offered in evidence, as per note of evidence filed July 24,1869, which three documents are missing from the records, and can not be found, although due and diligent search has been made,” etc.
Prom this certificate it does not appear that the record contains all the proceedings had, documents filed, and evidence adduced on the trial, ■except the missing documents mentioned, but only such of them as were of record when the certificate was made. The certificate is defective. But that is no cause for dismissing an appeal. Statute of twentieth March, 1839, p. 170, sec. 19. .
It appears, however, from the certificate of the clerk, that a part of the evidence filed on the trial is lost 5 and this loss is not attributable to the fault of the appellant. It would be a vain thing to grant time *12to correct tlie certificate, or to supply tlie missing documents, as tlie clerk lias certified that they can not be found. Justice demands that the case should be remanded to the court a qua to be tried anew. 5 An. 602; 1 An. 246; 12 An. 83; 13 R. 477 ; 5 N. S. 100; 13 L. 82.
It is therefore ordered that the judgment of the District Court be avoided, and that this cause be remanded to the lower court to be tried ele novo. It is further ordered that the costs of this appeal be paid by the party who may ultimately be cast in this suit.
Howell, J., absent.