Page:Dakota Territory Reports Vol 4.djvu/426

This writ of error came on for argument at the October term of this court, 1885, at which time the attorney for the territory made an application to the court for a writ of certiorari to the district court of Moody county, requiring it to further certify the record of the proceedings had at this trial, alleging that the record sent up was not a full and complete transcript of the record and proceedings had in the lower court; and such writ having issued, returnable at the February term of this court, 1886, and, at said February term, such return not having been made andfiled, the order was extended, and made returnable at the May t^rm of this court, 1886. At the May term, 1886, the clerk having made return to said writ of certiorari, it appears from inspection thereof, and of the record returned, that on the twenty-seventh day of March, 1886, after allowance of the writ of error, and issuance of the writ of certiorari, and after expiration of the term at which judgment was rendered, the district court to which such writ of certiorari was directed made an order correcting and supplying the omissions, irregularities, and errors complained of in the first five assignments of error, as well as that complained of in the seventh assignment. This amendment of the record was made by the lower court upon written notice, supported by affidavits of the clerk and of the district attorney, served upon the attorneys of record of the defendant, and by personal service upon the defendant himself 12 days before the hearing, stating the grounds of the motion, and the substance of the proposed amendment, and the time and place of hearing. The amendments were made from the recollections of the clerk of the district attorney, and of the judge presiding at the trial, who was still the presiding judge of that court, and from the inspection of the records and papers filed in the action. No objection was made to this amendment by the defendant in the court below, and no exception was taken to such action of the court in the lower or appellate court. And no question is raised in any manner in this court but that the record, as now presented, is a true and correct transcript of the proceedings as they occurred in the court below.