|Appeal from Circuit Court, Knox County|
|Williams Vs. Lawson|
|ACTION: Reversed and remanded|
Sept. 19, 1913
Action by Jason Lawson against Dan H. Williams. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
HOBSON, C. J.
On January 20, 1912, the plaintiff tendered in this case an amended petition to the filing of which the defendant objected, and the court took time on the motion. On April 27th the case was submitted on the motion, and the amended petition was filed. The defendant on the same day filed answer to the amended petition. On the calling of the case on that day for trial, the defendant moved for a rule against the clerk to produce the original papers, the petition and amendment thereto, answer, reply, motion to strike, and reply; the rule was granted; the clerk appeared and answered under oath that he did not have the papers in his office or custody, but that the same were charged upon the records of his office to the plaintiff's attorney, R. S. Rose, as having been taken from his office on September 18, 1911, and that Rose's name was signed upon the record as having on that day received them. Thereupon Rose stated that he did not have the papers, and did not know where they were, and could not produce them. The defendant's attorney objected to proceeding to trial unless the papers were produced or supplied. The court overruled the objection, and required the case to go to trial on the amended petition filed on that day. Counsel for defendant stated to the court that if the original papers were found, they would show that this amended petition was a complete departure from the cause of action set out in the petition; but the court overruled the motion to strike out the amendment, and stated that he had never seen or read or considered the original pleadings in the case. Counsel for defendant protested against trying the case in the absence of the pleadings, and stated to the court that he would not participate in the trial unless the papers were produced or supplied. But the court over his objection, required the trial to proceed, and counsel for the defendant withdrew and declined to have anything further to do with the trial of the case. The court thereupon impaneled a jury, and, the evidence for the plaintiff being heard, there was a verdict and judgment for the plaintiff. The defendant's motion for a new trial having been overruled, he appeals.
There is nothing in the record to indicate that the defendant was in any way responsible for the loss of the papers. The court may, by process of contempt or other proper proceeding, amply protect itself where one of the parties, to delay a trial, suppresses the papers; but the case cannot be tried on the merits in the absence of the record, until the record is supplied. The circuit court erred in directing the trial to proceed when the original papers were lost, and had not been supplied.
Judgment reversed, and cause remanded for a new trial and further proceedings consistent herewith.
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