Kemp v. Willis , 1958 La. App. LEXIS 484 ( 1958 )

GLADNEY, Judge.

The plaintiff, O. C. Kemp, instituted this suit against L. D. Willis in the City Court of Bossier City, to recover $500 as the value of a deposit made in connection with a contract wherein petitioner agreed to purchase an interest in a certain insurance agency owned by the defendant. The defendant appeared in court to file an exception of no right of action and an answer in the nature of a general denial. The judge a quo overruled the exception, and after trial of the case, rendered judgment in favor of plaintiff. The defendant has appealed from the decree.

We pretermit consideration of the exception of no right of action as it is not urged upon this appeal and for the further reason that there is no substantial evidence in the record by which its merit, if any, can be determined. Nor is this court in a position to intelligently review the decision with which appellant is aggrieved as the record does not contain a transcript of the testimony of the witnesses who appeared before the trial court. Accordingly, it is necessary for this court to follow the procedure taken in Murphy v. Miller, La.App., 98 So.2d 563, wherein pursuant to the provisions of Code of Practice article 898.1 and LSA-R.S. 13:4433, an opportunity was allowed appellant to correct the incomplete transcript under penalty of dismissal.

The appellant, therefore, is ordered to complete the record by incorporating therein the transcript of testimony, if any, adduced upon the trial of the case, or by the preparation and insertion in the record of a statement of facts agreed to by the parties or made up by the judge of the lower court as to the testimony of witnesses heard on the trial of the case, as provided for in Articles 601-603 of the Code of Practice.

Appellant is allowed a period of twenty days from the date this decree becomes final within which to complete the record in accordance with the above instructions. In the event of failure to so comply with this order, the appeal will be dismissed at appellant’s cost.