Tompkins v. Benjamin

JVdorphy, J., delivered the opinion of the court. This is an action instituted by a minor, emancipated by marriage, and assisted by her husband, to obtain from the defendant, who was her former tutor, an account of his administration as such, and the delivery of certain property belonging to her. The defendant filed a general denial; whereupon the court below, rendered a judgment in favor of plaintiff. After an unsuccessful attempt to obtain a new trial the defendant, appealed. The record does not enable us to examine this case on its merits. It. contains no evidence, statement of facts or bill of exceptions. We have been urged by the appellee’s counsel, either to affirm the judgment or dismiss this appeal. We think that in this case we can do neither. The judge of probates certifies that the record contains a copy of all the documents on file, and a transcript of all the proceedings had in the case, except the testimony adduced by the parties, which the counsel did not require to be taken down in writing. Had this appeal been brought np from one of the courts of ordinary jurisdiction, the motion to dismiss must have prevailed; but the provisions of the Code of Practice, in relation to the trial of cases in the Courtof Probates, differ widely in one respect from those regulating the proceedings of the other courts. In the [200] latter, the request of one of the parties can alone authorize the testimony to be taken in writing by the clerk, and'if this lias not been done, the judge must make a statement of facts, if required to do it at any time before the appeal is granted. See Code of Practice, articles 601-2. In the courts Pr0':)a(-ej the kiw provides that “ the testimony of the witnesses shall be taken in writing and annexed to the record, and a list shall be made of such documents as are produced (|ie parties and.are not annexed to the record, that they J r ’ j may be read on (he appeal. See article 1042, of the Code of Practice. The reason of this provision is obvious ; most suh-ors in our courts of probate are litigating “ en auter dr oil." They appear on behalf of heirs, minors, . ‘ . .. „ absentees, &c.; persons under the peculiar protection of our laws, without some such provision, for the preservation in writing of all proceedings affecting them, their rights might be jeopardized. Minors, for instance, are secured the right of appealing during one year after their becoming of age. Were the testimony not reduced to writing, it would in most cases be difficult, if not, impossible, for them to obtain a statement of facts. Their right to our appeal would be perfectly nugatory. Under the above provision, this court has recently held in the Eastern District, that the judges of the courts of probate cannot be called upon to make a statement of facts in the causes tried before them. It has been contended on the part of the appellee, that defendant’s' counsel not having called upon the judge below to lake down the testimony in writing, cannot complain before this court of his failure to do so. If under the provision above mentioned, it could have been the duly of either party to see the testimonv reduced to writing, we should think it. devolved on * . . t the- one- seeking to obtain a judgment that would stand and be supported bylaw. The defendant’s counsel might, have , absent, or if present he might not have thought himself bound (o require of the judge (hat which the law imperatively required of him. We do not think that a party should suffer from the judge’s neglect, to do an act necessary to the effectual exercise of his right of appealing to this tribunal [201] Although no bill of exceptions is to be found in the record, we cannot help noticing a singular feature presented by the proceedings before us, and which strengthens the conclusion to which we have come of remanding this case for a new trial. On the very day, the defendant fried his answer he was ruled to trial, notwithstandingan affidavit, he laid before the court, showing that unless a reasonable time was allowed he would be deprived of his means of defence ; all his papers and vouchers being in the hands of his counsel, then absent from the parish. A trial under such circumstances cannot be considered as a fair investigation of the rights of the parties. of^Pi-obaies^di'e y¡;íí?eisvequired tócfe'of tiie°Corf¡ of Practice, to take down the testimony of the writingfand anrecord1 to-ether with a list of the documents produced by the may be 'rea d'on the appeal. So, where the judge or probates failed or takedown itíe testimony of trial, and the wnhoutltT the manded^for1^ new trial. [201] It is, therefore, ordered, that the judgment of the Court of Probates, of the parish of Carroll,, be annulled, avoided, and reversed; and it is further ordered, that this cause be remanded over, to be proceeded in according to law; the plaintiffs and appellees paying the cost of this appeal.