¶1 ON REHEARING.
¶2 May 7, 1913.
¶3 On January 8th this case was dismissed because of defective recognizance. Within the time allowed by law a motion was granted permitting appellant to file an amended recognizance, and a writ of certiorari was granted to perfect the record, no statement of facts accompanying it, appellant alleging that one had been filed and lost. We have permitted the case to remain on the docket to give appellant time to substitute the lost papers.' The county attorney of Dallas County has filed an affidavit stating that since the writ of certiorari was issued, he personally went to appellant’s attorney of record and requested him to substitute the lost papers, which he promised to do; that he has repeatedly stated he would substitute the lost papers. The county attorney further states that he told appellant’s attorney if he would dictate the substitutes for the lost papers to his (the county attorney’s) stenographer, he would have them prepared and agree with him on the substituted papers. That although appellant’s attorney has stated he would do so, up to this time he has made no effort to substitute them. This affidavit of the county attorney was made on April 15, 1913. The county clerk files an answer to the writ of certiorari issued by this court, and after stating the papers were lost without fault or negligence on his part, states: “Your respondent would further shout that he has made a diligent search of the files of his office and diligently inquired of his deputies and employes as well as of all persons who would likely know the whereabouts of said statement of facts and bills of exception and after such search and inquiry the whereabouts of said statement of facts and bills of exception are unknown to your respondent, and that the same are not to be found in the files of the office of the county clerk of Dallas County, Texas, or in his custody, and your respondent would *258 further show that he has made diligent effort to comply with the order issued by this Honorable Court requiring him to send up a perfect transcript of the record in said cause and that because of the facts and circumstances above stated, he is unable to comply therewith further than to file, as heretofore done, a copy of the indictment and charge of the court given on the trial of said cause.
¶4 “Your respondent further shows that on receipt of the writ of certiorari issued on the 12th dair of February, 1913, he went to the Hon. Currie McCutcheon, county attorney of Dallas County, and with Mr. McCutcheon visited Mr. Williams and advised him of the writ. Mr. Williams claimed that he had carbon copies and agreed with Mr. McCutcheon, county attorney, and the respondent that he would substitute same. Afterward, Mr. Williams, the attorney of record for the defendant, claimed that he had lost or misplaced the copies. The county attorney, Mr. McCutcheon, and the respondent agreed to furnish a stenographer to Mr. Williams'to dictate copies, but Mr. Williams failed and refused to avail himself of that offer.”
¶5 This answer is sworn to by J. E. Eecord, county clerk. Thus it is seen that ample opportunity has been given appellant to substitute the lost papers and he has made no effort to do so, and in the absence of a statement of facts and bills of exception, no matter is presented that we can review. The cause having been reinstated, the judgment will now be affirmed.
¶6 Affirmed.