Le Blanc v. Broussard's Heirs

Martin, J., delivered the opinion of the court. In this case, the plaintiff and appellee moves to dismiss the appeal for want of the evidence on which the cause was tried, or a statement of facts. Either party may have the testimony offered in court, taken down by the clerh. Thejudge has no authority to do this even at the request of the parties, when the court has a clerk except in a case where the party intending to appeal, fails in getting the opposite party to make a statement of facts, then the testimony taken down by him in writing will serve as a statement. A statement of facts must be procured, by the party intending to appeal, necessarily, before the appealis granted An appellant neglecting to have a statement of facts made out, when the testimony is not taken down by the clerk before the appeal is granted, cannot claim any relief from this court. The case was tried before the probate judge, and judgment signed on the 10th of December, 1839. An appeal was granted on the 28lh of the same month, and in the following June the'judge died. The attorney who tried the cause states, in his affidavit, ihat at liis request the “evidence adduced by the parties was taken down in writing by the judge who tried the cause, and that said evidence or statement of facts has been lost or mislaid, and cannot be found.” The Code of Practice authorizes either party to have the testimony, offered to the court, taken down in writing by the clerk. When this is done, there is no need of any statement of facts. The judge has no authority, even at the request of one of the parties, to perform this service. If he were to do it, it would be of no avail, except in a case in which the fjarty intending to appeal, should unsuccessfully apply to the Opposite party to make a statement of facts. In such a case, the judge having a statement of facts to make, might give the testimony which he had taken in writing as a statement. Some courts of probate in this slate, have no clerk. In these, the judge may probably do whatever is to be done by the clerk, in the courts where one is appointed. The record shows, that in the court from whence this appeal is taken, there is a clerk. The testimony not having been taken down by the clerk, this ease cannot be brought before us except on a statement of facts. Such a statement must be procured by the party intending (o appeal, necessarily, before the appeal is granted. Code of Practice, 602. Scott vs. Blanchard. 8 Martin, N. S., 303. The appellant has asked of us to reverse the judgment, and remand the case for a new trial, in order to afford him the opportunity of having the case properly brought before us, the death of the judge of probates having deprived him of the means of doing so. If the appellant had lost the opportunity of bringing his case before this court, by the death of the judge, he would, be entitled to relief, as every suitor may claim our aid, when he has not deprived himself of it by his own' laches. [140] The appellant having neglected to have a statement of facts made, before the appeal was granted, had no longer the faculty of obtaining one afterwards. The death of the probate judge, who lived six months after the appeal was granted, caused him no injury. It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed, with costs. [