ARK,] MCCONNELL V. MCCORD. 21 MCCONNELL V. MCCORD. • Opinion delivered_November . 1, 1926 . „ 1. APPEAL AND ERROR-PRESUMPTION IN _ABSENCE OF EVIDENCE.= Where the record on appeal contained tio eyidence upon yaiich •the cause was heard, bUt merelY the pleadings and record entries, it will be Presumed that the eviddnce . suPports the'decree.' 2. APPEAL-CERTIORARI TO COMPLETE RECORD.-A petition for certio-rari . to reinstate, a lost .record of the testimony . in a chancery case which ddes not allege ihat the court had made an order authorizing a stenographer to take testimony, and file same,. nor state when the -stenographer's notes were lost,' but merely alleged that the stenographer -lost his aotes, but -that he and bystanders remembered the substance of the testimony, did.not state grounds . for having the record of the proceedings at the trial .brought up. Appeal froth Sebastian Chancery Court, Greenwood' District ; J. V. Bourland, Chancellor . ; affirthed:' -Robert A. Rdwe and Holland, H011and &Holland, for appellant. Georg'e W . Johnson and Evans & Evans, for appellee'. • MoCuLLom, C. J . ,The Case 'is here on appeal' from a decree of the chancery . 'court,. which , reéiteS 'that *the cause was beard 'on oral and doCumentary evidence adduled by the respective parties. There .Was nottenapt fo preserve the record under the statutory method, 'by having the stenographer file a certified tr . anscript 'of ,-the :testimony, and there was no order of "coUrt authoriiing the stenographer to take the testimbny hnd file the transcript as a part of the redord. v. Berr, -152 Ark. 452, 238 S. W. 613. Nor as the eVidefice properly preserved in a bill of exceptionS certified'and filed in aPt time. -Appellants filed what purported' to *be a 'hill 'of exceptions, supported by the affidavits . .td bystanders, but we decided, on motion of appellees,' fo strike thi Out-of
MCCONNELL v. MCCORD./ [172 the 'record, that the sanie was not properly certified and filed. 170 Ark. 839, 281 S. W. 384. Appellants could have adopted either of the methods of preserving the record, but failed to pursue either method in the proper manner. Therefore we have a record before us which does not.. properly contain any of the evidence, either documentary or oral, upon which the cause was heard as recited in the decree. There is nothing now in the record but the pleadings and record entries. - The pre-suniption must therefore be indulged that the decree is supported by the evidence, and there is nothing on the face of the record noW before us to indicate error in the proceedings. Since the transcript was lodged in this court, appellants Have brought up on certiorari the trariscript of supplemental proceedings instituted by appeilants below for the purpose of reinstating what is designated as the lost record containing the testimony in the case. The original cause was submitted to the colirt on May 11, 1925, and the decision was rendered and filed on November 14, 1925: The • supplemental complaint' now before us on certiorari was filed by appellants on, March 6, 1926, and it is alleged in the complaint that, at the trial of the cause, the oral testimony was taken down by a stenographer, that the stenographer "claimS ' , that he loSt; Or somebody Stole, the recOrd of the proceedings and the notes of all the proceedings," -but that said Stenographer "remembers the notes taken in shorthand and can reinstate all the record taken in _shorthand," and that there were several witnesses who heard the pro-, ceedings in the trial, and that the testimony could ,be reinstated from memory. The prayer of the complaint was that "all the testimony taken in the above entitled case by the court stenographer be ;reinstated, so that it can be in the Supreme Court in the trial of this case." The court sustained a demurrer to this complaint, and dismissed the complaint, from which decree . an appeal was prayed and granted.' The complaint did not, we think, set forth any grounds for relief. There is no
allegation that the court had made any order authorizing the stenographer to take down the testimony and file a transcript thereof; nor is there any allegation . as to the time when - the notes of the stenographer were . lost. Hence there was nothing stated in the complaint which, if proved, would have justified the court in permitting the record . of the proceedings to be made at that time. If the idea was to obtain relief on the ground of unavoidable casualty preventing the preParation of a bill of exceptions, the facts stated are not sufficient for that purpose, for the allegations of the complaint are that the stenographer remembered the substance of the testimony and that bystanders also remembered the testimony of the witnesses. The failure . to perfect the- record in apt time was not due to the stenographer's loss of his notes, but was due solely to the fact that appellants failed to obtain a record of the proceedings in apt , time by .either of the methods authorized by law. Decree affirmed.
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