Castell Land & Harbor Co. v. Bushong , 173 La. 389 ( 1931 )

On Motion to Dismiss Appeal. The motion to dismiss alleges that the transcript is incomplete. This was one of the grounds relied upon by mover in his motion to dismiss the appeal in Castell Land Harbor Co., Inc., et al. v. Isaac N. Bushong et al. (No. 31033) 173 La. 387,137 So. 71, which was overruled March 2, 1931. In that matter we said: "It appears that a part of the record consisted of the record and judgment in another suit. This record and judgment was inadvertently omitted, by the clerk who prepared the original transcript in the case. When the clerk's attention was called to the matter the omitted record and judgment was promptly transcribed and filed in this court, and, considering the clerk's certificate appended to the supplement to the original transcript, we must assume that appellants are not chargeable with laches in the preparation of the original transcript."

In the present transcript the clerk certifies that the record consists of the four pages shown therein and the transcript in No. 31033 of the docket of this court, filed January 2, 1931. At the time the clerk's certificate was attached to this transcript, the transcript in No. 31033 had not been completed by the inclusion therein of the record and judgment which had been inadvertently omitted from the original transcript in that case, and, for that reason, mover contends that the record is insufficient to permit the court to pass on this appeal.

The appeal is by the trustee in bankruptcy of Castell Land Harbor Company, Inc., and as the record in No. 31033 is now complete and before the court, and the issues which this appeal presents must be determined in the judgment to be hereafter rendered in No. 31033, no substantial right can be affected by maintaining the appeal. As a matter of fact, the rights of all parties will be conserved thereby. This motion presents an exceptional situation, and, for the reasons stated, it is overruled.