92 So. 587 | La. | 1922
Lead Opinion
Plaintiff sued for partition of certain property situated in the parish of Richland. Defendants having failed to appear or answer, a judgment by default was entered and in due time confirmed. From that judgment defendants proseexxte the presv ent appeal.
Appellants contend that the judgment was rendered on insufficient evidence, and, not having had the benefit of oral argument on their behalf, we copy from their brief the gravamen of their complaint:
“The record in the case does not show that any evidence whatever was adduced upon the trial, and while the clerk’s certificate is to the effect that the transcript contains all of the documents introduced and used upon the trial of the case, the deeds alleged upon in defendant’s [should be plaintiff’s] petition are not in the record, and, if the clerk’s certificate is to be given full faith and credit, it must be conclusively presumed that they were never introduced upon the trial of the case.”
Under the provisions of Act 43, p. 98, of the Extra Session of the General Assembly of 1870, a litigant may offer in evidence any record, paper, or document belonging to the files of the court of the parish in which the trial is proceeding, and it is not necessary in any such case for the clerk to make a copy of any such record, paper, or document, unless the case in which the same is offered is appealed to the Supreme Court, in which case the transcript of appeal shall be made up from the papers themselves.
The provisions of this act do not apply to the city of New Orleans, but it seems to be the universal custom in the country for litigants to avail themselves thereof, as they often greatly reduce expenses of litigation.
It thus appears that certain documentary evidence is placed, so far as the record is concerned, on the same footing as parol evidence; that there is no more necessity of producing and filing copies of records, papers, and documents forming part of the archives of the court in which the trial is proceeding than there is of taking down in writing the testimony of the witnesses. Plaintiff’s title is alleged in his petition, duly verified, to have been deposited for record with the clerk of the court, who is the official custodian of the same, in the parish of Richland, where the property is situated, and where the case was tried, so that its absence from the record does not raise the presumption contended for by appellant.
The case of Sample v. Brockenton, 145 La. 261, 82 South. 216, cited by appellant, would be authority for their contention, were the instrument in this case- not part of the records of the court of the parish of Richland. It must be observed that'Act 43 of the Extra Session of 1870 is not alluded to in the Sample decision, and it could not have been cited or called to the court’s attention.
Appellants do not claim that plaintiff’s title was not actually offered in evidence, but they claim that, because such title was not produced and the instrument or written document attesting it was not' filed as part of the record, the court must presume that it was not offered. Considering the provisions of the act of 1870, we are of the opinion that such presumption does not arise, and, on the contrary, that the presumption that the judgment was rendered on sufficient evidence must prevail.
For these reasons, the judgment appealed from is affirmed.
Rehearing
On Rehearing.
For these reasons, our former decree is set aside, and it is now ordered that the judgment appealed from be avoided and reversed, and that this cause be remanded to the lower court, there to be determined according to law- — -plaintiff and appellee to pay costs of appeal; other costs to be taxed when the case is decided.