149 So. 321 | La. Ct. App. | 1933
A.B. Dore instituted proceedings against L.T. Landry, (No. 6836) ruling him into court to show cause why the suit against him, entitled and numbered as above on the docket of the district court in and for the parish of Acadia, should not be dismissed on the ground that it had been abandoned.
L.T. Landry for answer alleges that he is in no way responsible for the delay made the basis of the rule, denied that he had abandoned the case, and prayed that the rule be discharged.
The court rendered judgment making the rule absolute and dismissed the cause as in case of nonsuit.
L.T. Landry appealed. The plaintiff in rule invokes the language of the Civil Code, art.
The record shows that L.T. Landry brought suit against A.B. Dore on a mortgage note for $500 filed December 4, 1924. The defendant filed answer, and on February 15, 1927, the case was tried and the taking of testimony was concluded. The last thing done and the last minute entry in which anything was said about the case bears date Feb. 15, 1927, and reads as follows: "On motion of D.T. Canan, Jr., attorney for defendant, the name of P.S. Pugh, Esq., was added to assist the defense and this case not being concluded yesterday at the hour of adjournment was this day resumed and concluded. Note *322 of evidence closed and case to be submitted when evidence is transcribed."
It was shown on trial of the rule that part of the testimony taken on the trial on February 15, 1927, was that of Lloyd Franques, witness for Dore, by a shorthand reporter. There was other testimony taken, but that of Lloyd Franques was for some reason never transcribed. More than five years elapsed after the taking of the testimony was concluded without further steps taken in the prosecution of the case, and based on that fact, Dore, plaintiff in rule, contends that the case has been abandoned. The abandonment is said to result from the failure of Landry to have the testimony of Franques transcribed, because until that was done, the case under the minute entry could not be regarded as having been submitted to the court. So the question is, was it the duty of Landry, defendant in rule, to have the testimony transcribed, in which event, under the minute entry, the case would have been automatically submitted.
Landry, defendant in rule, contends that it was not his fault that the testimony of the witness Franques was not transcribed; that it was the duty of the clerk of court to transcribe it and that the inaction of the clerk should not be imputed to him.
Act No.
The evidence does not show whether the reporter, who took the testimony of Franques, had been appointed by the clerk or judge, but as nothing indicates otherwise, we assume that the appointment was made by the clerk of court.
Section 2 of the act makes it the duty of the clerk of court to file the testimony within 10 days after it has been taken and which of course supposes that it will have been transcribed by his shorthand reporter within that time.
In Crespo v. Viola,
The provision of section 2 of Act No.
In Barton v. Burbank,
The cases, Cocke v. Cavalier,
Landry took no active steps in the prosecution of the present case for more than five years. The penalty prescribed by law for such inaction, being invoked against him, must be applied.
Judgment affirmed. Landry, defendant in rule, appellant, to pay the costs in both courts.