2 La. Ann. 722 | La. | 1847
The judgment of the court was pronounced by
The order of appedl in this case, made the appedl returnable on the first monday of May, '1845. The'transcript-was not filed until November 30, 1846. 'On-the 22d May, 1846, the plaintiff obtained a certificate that the record had not beeniiled, which’he filed'hrthe courfbelow, andobtained execution. The appellant has endeavored to relieve'himséif from the consequences of the omission to 'file the record, 'by 'the -testimony of his -counsel as to what occun-ed’between'-himself and'the clerk of the Supreme’Court, now deceased. It appears by this testimony that the counsel-was under-the impression that the transcript had been filed ; but, on'the other hand, -the conduct of the élerk is a tacit proof of his unwillingness to file it. The whole difficulty is solved by supposing that .the clerk -waited until security for costs.should be furnished in writing, as provided by the rule of the court, which .was not done. It does not.appear that the clerk expressly waived a written'bond .for costs, though satisfied with the name proposed. :See rule 13th April, 1814. A very strong and clear case should be made out to. authorise us to relieve an appellant from the consequences df his omission to file the record in time. The records of the court must speak for themselves; and, if we .are,permitted.to.look behind them, and to correct them, the mistake of the officer must be-established beyond all possibility of doubt. The clerk in question is dead, and we cannot say, upon the evidence-adduced, that he violated his oath of office in omitting to file this transcript. 'By reason Of the omission to file the record in time, and the taking out of a certificate .to that.effect by the appellee, the appeal.is in law-abandoned. C. R. 594.
Besides these considerations we must add, that our power,to.correct the records of the former Supreme .Court,-is, to say thedeast,.very questionable.
The case is not before us; -and the application made on the 1st May, 1847, for an order directing the Olei-k to make an endorsement of filing nunc pro tunc, and'for other relief .as.set forth.in.said application is dismissed.
