On REHEARING.
The opinion of the Oourt was delivered by
Bermudez, C. J.The plaintiff and appellee has moved the dismissal of the appeal herein, on the ground of the incompleteness of the transcript.
He complains that certain documents and proceedings, which he mentions, and which, he says, were offered in evidence by him, are not included in the transcript.
We declined to dismiss the appeal, and, with a view to afford him an opportunity to introduce and file in evidence the documents and proceedings which appear to have been offered, we reversed the judgment of the lower court and remanded the case.
With the decree so made, the plaintiff found fault, claiming that the only order that could have been made, would have been, either to sustain the motion and dismiss the appeal, or to overrule the motion and permit a trial on the merits on the transcript as it stands.
A rehearing was properly granted him. Since then, on defendant’s application, an order, in the nature of a certiorari, was issued to the *1078clerk of the lower court to complete the transcript. The return of that officer, who is the same who certified the transcript as containing “ all the proceedings had, all the testimony and evidence adduced, and all the documents filed ” in the case, shows that he and his deputies have taken pains to ascertain in what respect the transcript is deficient, and that unable to do so, ho confirms his previous attestation, with the statement that no document whatever was filed other than those embraced in the transcript.
The clerk had a right to justify himself in this manner.
From the note of evidence, it appears that the plaintiff has offered in evidence a “ record (in the lower court), and all proceedings (in the case stated), the writs of -fieri facias issued therein, the provisional seizure, the return of the sheriff thereon, and all orders of the court rendered in that suit, and, in connection with that, also all papers and documents in the sheriff’s office, books, etc., or connected therewith ; ” but it does not appear from the entry that the plaintiff was allowed to introduce the same in evidence. One thing it is to offer, and another to introduce, evidence. Either litigant can offer, but it is not until after the offer has been made and not resisted, or permitted, that the evidence is introduced, and that the documents are filed. Even if the terms were convertible, it does not appear that the plaintiff has produced and caused to be filed the evidence offered.
Litigants, by such loose practice and entries on the note of evidence, have no right to expect that the court of the first instance will undertake to ascertain what was or not offered or introduced in evidence, either by searching for records in the clerk’s office or inspecting “ papers, documents or books in the sheriff’s office.” Neither can they expect from the clerks, who are ministerial officers only, who have no judgment to exercise, that they will assume the responsibility of determining what was or not offered or introduced in evidence.
It is not enough for parties to offer, they should introduce, in evidence. The offer precedes the introduction, with which the filing must be simultaneous. Litigants who introduce written evidence offered, should produce it and then see that it is properly noted and filed. 6 A. 162; 7 A. 65; 30 A. 833. The court has no authority in determining cases to consider, as in evidence, documents not introduced and not described and filed. Clerks have no right to include in a transcript such evidence which was not produced and filed. The entries in this case are qui,te irregular.
If the transcript be incomplete, it is so by the fault of the appellees and not by that of the appellant. We are at a loss to see how the appellee himself, under the note of evidence in the record, could force *1079the clerk of the lower -court to include in the transcript the documents to which he refers as not embraced in it.
The previous decree herein is rescinded.
It is now ordered that the motion to dismiss the appeal be overruled with costs.