Wilson Gold Stamping Mach. Co. v. Webb Hardware & Furniture Co.

45 So. 2d 639 | La. Ct. App. | 1950

HARDY, Judge.

This is an action in which plaintiff seeks to collect an amount alleged to be due by defendant for goods sold and delivered. After trial in the City Court of Minden,, Webster Parish, Louisiana, there was judgment in favor of defendant rejecting plaintiff’s demands, from which plaintiff had appealed.

Examination of the transcript discloses it to be so incomplete that we do not feel we can intelligently pass upon the merits of this case. The record contains a mass of exhibits apparently tendered by both plaintiff and defendant, but there is no indication either on the exhibits themselves or in the minutes as to whether any or all of these exhibits were properly offered and received in evidence. The same is true as to-the depositions of two witnesses on behalf of plaintiff. It further appears that although certain oral testimony was taken on trial of the case, the record does not contain either a note of such evidence nor a. statement of facts agreed on, by the parties or made up by the Judge of the lower court..

Under the old rule the appeal in this case would be subject to dismissal, but in the case of Nunez v. Serpas, 198 La. 415, 3 So.2d 673, the Supreme Court held that this-rule has been modified by the provisions of Act No. 234 of 1932, which, in effect, provides that a court shall not dismiss an appeal unless it first allows to the appellant a period of time within which to cure and correct the informalities and irregularities existing in the transcript.

Accordingly the appellant is ordered to complete the record:

(a). By proper official certification identifying the exhibits tendered and received in-, evidence by the respective parties;

• (b). By similar proper showing as to the interrogatories of plaintiff’s witnesses; and,.

(c). By the preparation and insertion in the record of a statement of facts agreed on by the parties or made up by the Judge of the lower court as to the testimony of such witnesses as were heard on trial of the case.

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