Watts v. Smith , 1958 La. App. LEXIS 543 ( 1958 )

ELLIS, Judge.

This is a suit for libel which was tried and judgment rendered in favor of the plaintiff for $50, from which the latter secured an order of devolutive appeal to this court upon his furnishing bond in the sum of $500, which bond plaintiff filed within due time.

Defendants-appellees duly filed motion to dismiss the appeal in this court on the ground and for the reason that the record does not contain any transcript of testimony, or in lieu thereof, any agreed statement of facts by the court, and the said transcript is therefore incomplete and imperfect, so that this court is unable to consider same, and for the further reason that the record does not indicate any evidence or attempt by appellant to obtain any transcript of testimony, or in lieu thereof any joint agreement or statement of facts, or a statement of facts by the judge of the trial court. Defendants further set forth in their motion that by letter the clerk of the trial court had advised this honorable court, through the clerk hereof, that the transcript of testimony was not filed herein for the plaintiff-appellant’s failure and refusal to pay the court stenographer the costs of same, and as appellant, said plaintiff-appellant was and is directly responsible and liable for the payment of the stenographer’s fees for preparation of the transcript of testimony, and the court reporter or stenographer is not required to prepare and/or file the transcript of testimony until the fees for same are paid, and, therefore, the failure of this record to contain a transcript of testimony or evidence is due to the active fault, failure and negligence of plaintiff-appellant.

On the day that this case was called for argument word was received by this court that counsel for plaintiff-appellant was engaged in the trial of a case in Federal Court, and he therefore made no appearance, and to date no brief has been filed and no explanation is contained in the record other than a letter from the Clerk of Court of the Parish of Livingston addressed to the Clerk of this Court in which he states in part: “* * * the notes of testimony is not in the record for the reason that the court reporter will not file same until it is paid for, when the parties pay for it will mail it to you at once.”

While we have the utmost respect for counsel for plaintiff, and have no doubt that his failure to appear or file brief was based upon valid personal reasons, such failure is sufficient in itself upon which to dismiss an appellant’s appeal, however, the grounds set forth in the motion to dismiss are well founded, in fact, from an examination of the record and in law. See Morgan v. Kent, La.App., 83 So.2d 672; Campbell v. Marshall, La.App., 28 So.2d 296, 297.

No appearance having been made in this court by counsel for plaintiff, no brief having been filed, and no testimony being in the record for failure of the plaintiff to pay the court reporter, it is hereby ordered that the appeal of plaintiff-appellant be dismissed at his costs.