¶1 No. 6996
¶2 (State v. Thornhill)
¶3 Upon petition for rehearing.
¶4 Was there, in fact, an order directed to be entered by the trial court on December 17, 1930? If so the court made no mistake in entering the nunc pro tunc order of October 13, 1931. The original order endorsed for entry appears to have disappeared from the files; and it is urged that there is no proper basis for the entry of the mine pro tunc order, that memory alone is not sufficient, to justify its entry. The contents of the lost order, if there was one, is not at issue, for the clerk certifies that the mine pro tunc is the same (I presume a copy) that was signed by the judge in vacation December 17, 1930. If the original of the omitted order with the endorsement for entry thereon was produced, there could be no question of the propriety of entering it as "now for then.” The paper is lost and its existence, like any other lost paper may be proven. The clerk, a sworn officer of the court, has certified that there was such paper signed by the judge and *264 inadvertently not spread npon the order book. This fact is not controverted. The judge says he may or may not have signed such order. His statement does not controvert the certificate of the clerk. We think the paper and its contents proved; and there being in fact such paper, it would justify the court in entering it ‘ now for then; ’ ’ that is on the 13th day of October, 1931 (when the lost paper and its contents was established) as of the date it was directed to be entered, December 17, 1930.
¶5 Since the decision to refuse to dismiss the writ of error for failure of the prisoner to preserve his bills of exception by entry of the order, and the decision on the merits, the clerk undertakes to throw doubt upon his certificate above mentioned. The undertaking will not be heard. There must be no trifling with orderly procedure.
¶6 Reversed md remanded.