The record of this  case is admittedly  defective  in  that the  transcript of the  stenographic notes  of  the testimony taken in  the court  below does not include the testimony of several witnesses taken at  one of the  hearings.  Counsel for both appellant and appellee decline to go forward in this court upon the imperfect record.

Counsel for appellant moves for a new trial on the ground that notwithstanding  the  exercise of due diligence on this part he has found it impossible to procure a duly certified transcript of  the stenographic notes of  the  missing testimony, because, as he alleges, the  official stenographer  who took these notes has severed his connection with the service, and  his present whereabouts are unknown.

Counsel for appellee, on the other hand, moves for  the dismissal of the appeal en the ground  that  appellant has failed to perfect the record  within the time  prescribed by the rules of court as extended by stipulation  of counsel.

By express provision of law it is the duty of the appellant to make all the evidence submitted in the court below a part  of the record brought  here on appeal, in any case wherein he seeks to have this court review the evidence to determine whether it sustains the judgment of the court below.   Accordingly, under our practice, in any case wherein the  appellant willfully or negligently  fails  to bring a properly certified transcript of all the material evidence taken  in the court below to this court on  appeal, or to exercise the utmost  diligence in an effort to perfect the record  when it appears to be defective in  this regard, this court declines to review the  evidence or any part thereof taken in the court below or  to retry the questions of fact, and limits itself to a determination of the questions of law raised by the bill of exceptions.   In other words, we treat the record as though no motion for a new trial had been submitted in the court below on the ground that the judgment is not sustained by the weight  of the  evidence, and look only to the  pleadings and the findings of fact by the trial judge in ascertaining whether the judgment  is sustained  by the facts proven  at the trial.   But  when it is made to appear that without fault on the part  of the appellant  he has found it impossible by his  own efforts and by the  exercise of due diligence  to perfect the record in this  regard, we either  lend  him  the  necessary  assistance to this  end by issuing appropriate orders for the production of  the evidence, including the transcript of  the steno- graphic notes if they are in existence and can be procured, or grant a new trial to supply the missing  testimony.

The appellant in this case appears to be  unable to secure a certified copy of the  stenographic notes of the missing testimony for reasons beyond his control  (the absence  of the stenographer), and under such circumstances we would ordinarily grant  a new trial, he having moved for a new trial in the court below  on the ground that the  judgment is not sustained  by the weight of the evidence.  But  he admits that he has in his possession an uncertified copy of the transcript of the official stenographic notes of the missing testimony, and it is not improbable that were these notes submitted to counsel for appellee he would  be willing to accept this copy as a correct transcript of the notes of the missing testimony.  Indeed,  the  record discloses that counsel have already discussed the possibility of arriving at some  such  agreement, though they have thus far  been unable to get together, apparently because each thinks that he has the other on the  hip - the appellant hoping  for a new trial, and the  appellee for a dismissal of the appeal, as a result of the defect in the record.  In the meantime, however, the appeal hangs fire in this court, and the course of justice in the disposition of the case is unduly delayed. Of course, if  it can be avoided,  neither party  should  be allowed to secure any  undue advantage as a result  of a defect in the  record for which  neither one is  to blame, and to secure  that end, and in the interests of justice, the following order will be entered.

For the present the motion for a new trial of counsel for appellant dated April  10, 1911,  is denied, as is also the motion to dismiss submitted by counsel for appellee dated April 18, 1911.

Counsel for appellant is directed  to file forthwith the "unsigned copy which is in the possession of plaintiff and appellant of the transcript of the stenographic  notes," of the testimony which it is alleged  is lacking in the record, and to which he refers in connection with his motion for a new trial,  accompanied with his certificate setting forth how said copy came to his hands and whether it  is or is not a true copy of all the missing portion of the record; at the same time he will furnish counsel for appellee with a copy thereof.  Upon the filing of this copy of the missing portion of the record, counsel for appellee will  forthwith inform the court in writing whether he is or is not willing to accept this  copy of the missing portion of the record as a true and correct statement thereof..  Thereafter if  the court is satisfied that appellant has done everything in his power  to perfect the record,  and is without fault in  his failure or inability so to do to the satisfaction of the  appellee,  the appeal  will not be dismissed  and a new trial will be granted as prayed for by appellant; but if on  the whole record the court is of opinion that there is any lack of diligence on the part of counsel for appellant in his effort to complete the record satisfactorily, a new trial will not be granted, and judgment will be rendered on the appeal as though no motion  for a  new  trial  had been submitted in the court below, this court declining to review the evidence taken in the court  below  or to retry questions of fact, and limiting itself  to a determination of the questions of law raised by the bill of exceptions.

Further, the clerk of the Court of First Instance of Iloilo is directed to submit at once a full statement of the  reasons for the delay and  failure in the perfection of this record as far  as known to him, including the name and  present whereabouts of the stenographer who took the testimony, and also the names of all witnesses called throughout  the course of the trial, together with a  certified copy of such memoranda or record pertaining to this case as may be in the files of his office.  So ordered.

Torres, Johnson, and Moreland, JJ., concur.

Case remanded for perfection of record.