Sewell v. Jacobs , 1 McGl. 133 ( 1881 )

The opinion of the Court was rendered by S. S. Carlisle, •Judge ad hoc, vice Eogers, judge, recused, having decided the •case in the first instance.

Carlisle, Judge ad hoc.

This cause came up for hearing-in this Court on the day fixed and was regularly submitted.

An application for a writ of certiorari was made, after submission of the case, by appellant to perfect the record, which was found to contain none of the testimony adduced in the-lower court.

This case involves an amount exceeding five hundred dollars, and in the absence of any bill of exceptions or assignment of errors, the evidence upon which the judgment appealed from was rendered should be placed before us before it can be-considered.

The record is clearly defective in this respect, and the question is presented whether the fault is imputable to the appellant.

We think it is. The appeal was granted, on motion, July 3, 1880, and made returnable to this Court on the 8th day of November following, a sufficiently long interval in which to have discovered the loss of the testimony, and taken steps to have found it, or to have replaced it in the manner pointed out by law.

If the loss of the testimony had not been discovered before the return day, it certainly became known to appellant then, as on that day, under rule No. 5 of this Court, he filed a detailed list of all the pleadings, evidence and documents produced on the trial of the cause in the lower court, and he then became aware of the defective character of the record. Tet he took no steps even then to remedy it. His application for a certiorari comes too late.

As we said in the case of Becker v. Quick et al., 1 McCloin, 111:

'If the record be defective through the fault of appellant, and he makes no timely effort to perfect it, the appeal must be dismissed.”

It was the duty of appellant to bring up a complete record, or in proper time suggest a diminution of the record in order that it should he corrected, if possible, and the trial be proceeded with. 27 La. An. 105; 18 La. An. 180.

It is unnecessary to consider here the question as to whether the motion to dismiss was urged in time.

We laid down in Grivot v. Waples, No. 38, recently decided, that even though no motion to dismiss had been urged, we should yet, ex yp-oprio motu, dismiss an appeal where appellant brings up a transcript or record of appeal which is clearly defective, and where no timely effort is made to cure its defects, and in this view we are sustained by the jurisprudence of this State. 8 La. An. 433 ; 18 La. An. 229; 27 La. An. 105.

Let the appeal, therefore, be dismissed at the cost of the appellant.