When the record of a judgment is reinstated it is admissible in evidence without a production of the pleadings. Cox v. Stout, 85 Ind. 422.

1247. (1233.) Complaint to restore.-2. Whenever the loss or destruction of any such record, bond, execution, order of sale, or other writ, or the returns thereon; or any other paper or part thereof, shall have happened, or shall hereafter happen, and such defect can not be supplied as provided in the next preceding section, any party or person interested therein may file his complaint in the court to which the same belonged, or which has jurisdiction over or custody or control of the same, showing the loss or destruction thereof, and that a certified copy thereof can not be obtained by the party or person making such application, and the substance of the same so lost or destroyed, and that such loss or destruction occurred without the fault or neglect of the party making such application, and that such loss or destruction, unless supplied, will or may result in damage to the person making such application; and, thereupon, the defendants named in such complaint shall be served with summons or notified by publication, as provided in the next section of this act, and said cause shall stand for hearing by said court the same as other civil cases in said

court.

The supreme court was equally divided as to the necessity of describing in the complaint the cause of action upon which the judgment was founded. Spears v. Work, 29 Ind. 502.

1248. (1234.) Summons-Publication.-3. The defendants, their legal representatives, or the necessary parties, in all cases mentioned in the preceding sections, shall have ten days' notice of the time set for the hearing thereof, by summons issued by the clerk of such court; or if such defendants are non-residents of the state of Indiana, or their residence be unknown, or the names of any necessary party defendants be unknown, such notice may be given by three successive weeks' publication in some weekly newspaper of general circulation, published in said county, to be named by the person making the application, his agent or attorney; or if none be published in such county, then such notice shall be given by publication in the weekly newspaper published in this state nearest the county seat of such county (such published notice to be given by the clerk of such court, on affidavit filed by plaintiff, his agent, attorney, or some competent person); the last of which notices shall be published ten days before the first day of the term of court in which said complaint may be pending, or ten days before a day in said term for which said cause may be set for hearing, which day shall be named in the summons or notice.

1249. (1235.) Answer-Proofs-Order of reinstatement.-4. Such defendants may resist such complaint by answer of nul tiel record, and no other, as to the existence of the record, bond, execution, order of sale, or other writ, or the returns thereon, or other paper sought to be reinstated; and upon the trial thereof, oral testimony shall be admitted, and strict proof of dates, sums, and amounts, and actual entries and forms of record shall not be required on the trial of such issue; but

the court shall, on such hearing, if the question is presented, determine, and in its record of reinstatement set forth, what satisfaction, in whole or in part, by payment or otherwise, has been made of any judgment or decree sought to be reinstated since the rendition thereof. And if, upon such hearing, such court shall be satisfied that the statements in such complaint are true, the court shall make an order reciting what was the substance and effect of such lost or destroyed record, bond, execution, order of sale, or other writ, or the returns thereon, or other paper or part thereof, and what satisfaction, by payment or otherwise, in whole or in part, has been made of any judgment or decree so sought to be reinstated, when that question is sented; which order shall be entered of record in said court and shall have the same force and effect that the original record would have had if the same had not been lost or destroyed, subject to any satisfaction found by the court.

pre

1250. (1236.) Setting aside reinstatement.-5. In all cases where any record, bond, execution, order af sale, or other writ, or the returns thereon, or any other paper, or part thereof, mentioned in this act, has been or may be lost or destroyed, in whole or in part, and has been reinstated without appearance of or actual notice to the defendants in such proceeding of reinstatement, any such defendant may, at any time within two years thereafter, unless he may be under disabil ities (then within two years after the removal of such disabilities), on affidavit of merits, have the same set aside, on motion in writing (of which motion the plaintiff or complainant shall have the same notice required to be given the defendants by section three of this act); and when such reinstatement shall be set aside, the same proceedings shall be had thereon as if the defendant had appeared to the original complaint for reinstatement.

1251. (1237.) Proceedings in pending causes.-6. In all actions now pending, or that may hereafter be commenced, in any court of record in this state, any party thereto may, on application to such court, verified by affidavit, show that any record, bond, execution, order of sale, or other writ, or the returns thereon, or any other paper of the record or files of any court in this state, necessary to be used in evidence in such cause, has been lost or destroyed, in whole or in part, without his fault or neglect (which affidavit shall show the competency and necessity of the same as evidence in the cause, and that the same has not been reinstated), such court shall, unless the adverse party will admit on the trial the facts stated in such affidavit, stay all proceedings for a reasonable time, that said destroyed record, in whole or in part, may be reinstated, and the court shall, upon cause shown, grant further and additional time for the reinstatement of such record, but the trial of such action shall not be delayed more than one year for such reinstatement; and to expedite the reinstatement of the same, the court may, on motion of either party, refer the question of such destruction and reinstatement, as shown in such affidavit, to a master commissioner, to be appointed by the court, to hear, examine, and

take all the evidence, and report fully all the facts, in writing, to the court, as provided for in this act.

1252. (1238.) Duties and report of master-Pay.-7. Whenever any complaint is filed in any court for the reinstatement of any record, bond, execution, order of sale, or other writ, or the returns thereon, or any other paper or part thereof, as above provided, the court may, on its own motion, or upon application of either party, refer to a master commissioner for examination and hearing all the evidence, written or oral, in such case; and such master commissioner shall hear such evidence, as in other cases, and shall make a full and complete report thereof to the court, and shall also report to the court, in form, such record, bond, execution, order of sale, or other writ, or the returns thereon, or any other paper or part thereof sought to be reinstated. And the court, if it finds the forms so reported to be substantially correct, as shown by the evidence reported, shall order the same reinstated accordingly; and when so entered of record by the court it. shall have the same force and effect as the original would have had if the same had not been lost or destroyed. Or, such court may, from the report of such master commissioner, find, determine, and say what such original or part thereof was before its loss or destruction, and shall order the same reinstated; and when so reinstated it shall have the same force and effect as the original would have had if the same had not been lost or destroyed. Which report of master commissioner, and the finding and judgment of the court thereon, shall be governed by the same practice as in other civil cases. Before such master commissioner shall proceed to hear and examine the evidence in any case referred to him, he shall give the parties thereto reasonable notice of the time and place of hearing the same. Said master commissioner shall have power to issue writs of subpoena (which writs and other notices shall be served by the sheriff), administer oaths, require the production of all writings, records or parts of records, papers, memoranda, or exhibits in any case referred to him; and he shall report to the court, for punishment for contempt, any person for failure to appear before him, on due and sufficient notice, to give testimony or to furnish any writing, record, or part of record, paper, memorandum, or exhibit that may be required in evidence in any case so referred. Such master commissioner shall be allowed by the court, for his services, reasonable compensation, to be taxed and paid as the court may direct.

1253. (1239.) To quiet title, records being lost.-8. Whenever any record of any court of this state, or any pleading or paper of the files of such court, any probated will or will filed for probate, or any execution or decretal order or other writ issued out of such court, or by the clerk thereof, has been lost or destroyed, in whole or in part, and such lost or destroyed record, paper, will, order, or writ, in any way, forms a part of the evidence of any title to or interest in any real estate, either legal or equitable, any person holding such title to or interest in such real estate may, by complaint in the proper court of

the county in which such real estate is situate, have his title to or interest in such real estate declared quieted and set at rest. All persons having or claiming any interest in such real estate shall be made defendants to such complaint, and shall be served with notice, as provided for in section three [§ 1234]. The complaint shall specify the plaintiff's title to or interest in the real estate, and shall state, with reasonable certainty, the record, paper, order, will, or writ lost or destroyed, and how the same constitutes a part of the evidence of his title to or interest in such real estate. Upon the trial of such cause, oral testimony shall be admitted of the loss or destruction, and the contents of such records, papers, wills, orders, or writs so lost or destroyed; and such rule of evidence shall be applicable to every part of such records, papers, orders, wills, or writs, the issuing of such writs, and other process of such courts, and the returns thereon, notices by publication, and the proof thereof.

1254. (1240.) Reinstating probate records.-9. The judge of any court having probate jurisdiction, the records of which may have been or may hereafter be destroyed, in whole or in part, may proceed, upon his own motion, or on complaint in writing by any interested party, to reinstate the records and proceedings of such court relating to decedents' estates, guardianships, records of wills, wills probated, and wills filed for probate, in said court; and for the purpose of reinstating said records, wills, papers, or proceedings, or any part thereof, may, on his own motion, or on written complaint filed by any interested party, issue citations and compel the attendance of all parties for that purpose; and may, in his discretion, refer such matter to a master commissioner, as provided for in section seven [§ 1238]. All persons. interested shall be notified as provided for in section three [§ 1234], or in such manner and for such time as the court may direct. And oral testimony shall be admissible of the existence, contents, and destruction of such records, papers, and wills.

1255. (1241.) Special terms to reinstate.-10. The judge of any court, the records or papers whereof have been or may be destroyed, in whole or in part, is hereby authorized to hold any special term or terms of said court, for such length of time and at such time or times as may to him, in his discretion, seem proper, for the purpose of reinstating records and papers of such court. And process may be made returnable at such special terms, and all proceedings had thereat in such cases, the same as at a regular term of said court.

[2 R. S. 1852, p. 505. In force January 12, 1852.]

1256. (1242.) County board to meet.-1. Whenever there has been or shall be destroyed, all or any of the books, pamphlets, papers, records, or other writings, belonging to any county in this state, or to any court of record held therein, it shall be the duty of the auditor of such county, forthwith thereafter, to notify the members of the board of commissioners of such county to meet at such time and place as he shall designate; and they shall so meet accordingly, and may, during the twelve months from thence next ensuing meet from

time to time on their own adjournments, if such meeting shall, in their opinion, be rendered necessary by the destruction of the records as aforesaid.

1257. (1243.) List of documents to governor.-2. Such board, when so met, shall, on proof made before them, cause to be made out and certified by the auditor of such county, a list of all books, pamphlets, documents, records, maps, and other papers, whether written or printed, which have been so destroyed, which had before such time been furnished such county by the state government by virtue of any law or joint resolution of this state; which certified list such auditor shall forthwith forward to the governor of the state.

1258. (1244.) State to furnish documents.-3. It shall be the duty of the governor, immediately on the receipt of said certified list, to notify the officer or officers of state whose duty it may be to furnish counties pamphlets, books, documents, maps, records, and other papers, whether written or printed, of the fact of such destruction; and it shall be the duty of such officer or officers, immediately thereafter, to furnish to such county all such pamphlets, books, documents, maps, records, and other papers, whether written or printed, as may be so certified to have been destroyed, in the same manner as if such county had never received the same.

1259. (1245.) Recorder to record instruments.-4. If the records required to be kept in the recorder's office of any county in this state have been or shall be destroyed, in whole or in part, it shall be the duty of such recorder, forthwith thereafter, to procure a book or books, in which he shall, from time to time, and in the order in which they may be presented, record such deeds and other instruments of writing as had been previously recorded in such office, and the record whereof has been destroyed; and he shall also, immediately after the record of such deed or other instrument, record the indorsement thereon made by the recorder, of the time when said deed was originally filed in such office for record; and such record shall have the same force and effect as the original record would have had if the same had not been destroyed.

By act of 1883, Acts 1883, p. 132, Elliott's Supp., section 24, ante, section 469, the general index of records in the recorder's office is made evidence of contents of destroyed records.

1260. (1246.) Recorder to record proofs.-5. Such recorder shall also procure another book or books, in which he shall record, in the order in which the same may be presented to him, all such proof of the execution, acknowledgment, contents, destruction, and recording of any deed or other instrument before that time recorded in such office, the record whereof has been destroyed, as may be made before him in the manner hereinafter prescribed; which said book or books, together with the book or books required in the last preceding section, shall be, by such recorder, indexed in the same manner as records of deeds may, at such time, be required to be indexed by existing laws.