The opinion of the court on motion to dismiss was delivered by Watkins, J.
Upon the application for rehearing by Watkins, J.
On Motion to Dismiss Appral.
The opinion of the court was delivered by
Watkins, J.The grounds of the motion are, (1) diminution of the record; (2) and insufficiency or incorrectness of the certificate of the c<lerk of the District Court appended to the transcript.
There is a third ground stated in the motion to dismiss 'which has been formally abandoned, and need not be mentioned.
The transcript contains only the judgment and the petition, order .and bond of appeal; yet the certificate states th!kb “the foregoing five “pages do contain a true, correct and complete transcript of all the •“proceedings had, documents filed, and evidence adduced upon the *1933“trial of the cause wherein Riley Y. Woodlief is plaintiff, and “George G. Logan, et als, are defendants, instituted' in this court, and “now in the records thereof, etc.”
It is quite evident, that all the proceedings had, documents filed, and evidence adduced, are not in the transcript, and, therefore, the transcript is incomplete, and the certificate erroneous.
But, our attention has been attracted to The fact, that appellants-filed a motion in this court, requesting that the transcripts heretofore filed in this court, hearing the docket numbers 12,611 and 12,713 he made parts of the transcript in this cause, as same “are branches of this cause;” and it appears, that this court, thereupon, granted an order to the effect, “that same he considered and made part thereof,” and that “appellants be permitted to use the same herein without' prejudice.”
.But, counsel for appellee contends, and we think correctly, that there is nothing to show that those two records contain the pleadings' and evidence on which the judgment appealed from was founded; and,' if so, the certificate to the transcript in the instant case is clearly at variance with these facts.
Per contra, if -the said certificate is correct, then, it is evident,that these two records do not contain the pleadings and evidence.
That motion was made and granted ex parte — the appellee not being party thereto, as is shown by the order of this court.
In addition to the foregoing contention, it is clear that the trans-cript must he made up completely and entirely in the District Court; and no imperfections therein can he cured by any proceedings had in this court.
If the transcript is complete and perfect when it is filed in this court, other records thereof may he cumulated therewith and used by either party on the submission of same; but they can not he made to subserve the purpose of an amendment to an .imperfect transcript, and thus complete it.
The. province of the District Court is, to try the case, decide it,, and transmit a full, true, perfect and complete transcript thereof to this court for review in case an appeal is taken.
The proper course for the party east in the District Court, who desires to use records in this court without having same formally transcribed into tbe transcript, is to obtain an order of the District Court to that effect, or the consent, of the opposite party; and to have *1934it particularly'specified on. the certificate of appeal, that the records of this court, together with those included in the transcript, constitute a full, true and complete transcript of the cause for trial on the appeal.
There seems to b.e no escape from the conclusion, that the transcript is absolutely wanting in every element necessary to its completion, and that the certificate of appeal is entirely incorrect.
The appeal must therefore be dismissed.