The judgment of the court was pronounced by

The plaintiff, who was under-tutor of the children of the defendant, instituted this proceeding to have the said defendant removed from the tutorship, on .the ground that he was unfaithful in the administration of the tutorship, and of notoriously bad conduct. The petition was served at the defendant’s domicil, during his absence; he failed to answer, and a judgment by default was taken. After the legal delays, the plaintiff appeal's to have adduced evidence in support of his allegations, and a judgment was rendered removing the defendant from the tutorship. This appeal is taken from that judgment.

The clerk of the district court has certified that the transcript contains a true and correct copy of the proceedings, with the exception of the evidence adduced by the plaintiff, which is lost or mislaid. The appellant asks that the case be remanded to supply this deficiency, for which he alleges he is in no manner responsible.

It is urged, that to entitle himself to the relief he asks, the appellant should have called upon the district judge, contradictorily with the opposite party, to supply the lost evidence by a statement of it. This would have been the most regular course, but it was probably not the fault of the defendant that it was not resorted to.

Upon charges the most vague and indefinite he has been removed from the tutorship, and deprived of the custody of his children during his absence, and, as it seems, without his knowledge. For the sake of the children, and of humanity, I think we ought to give him the opportunity of being heard, especially as it can cause no injury to the appellee, either in his individual or fiduciary capacity. We think justice requires that the cause be remanded for a new trial.

It is therefore ordered, that the judgment in this case be reversed, and the case remanded for further proceedings according to law; the appellee paying the costs of this appeal.

dissenting. I am not prepared to relieve the appellant under the circumstances. The testimony taken in writing, having been lost or mislaid, the defendant, it seems to me, should have called upon the district judge, contradictorily with the opposite party, to supply the lost evidence by a statement of it. If the judge was unable to make a statement, or if he having made a statement, this court, upon a proper showing, should find any reason to suppose that the statement was defective, there would then have been presented a case for the equitable interference of the court by opening the judgment, and remanding the cause for a new trial.