Levy v. Rich

The opinion of the Court was delivered by Breaux, J., on motion to dismiss. On the merits by Provosty, J. On Motion to Dismiss. . Breaux, J. The grounds of the motion filed by the appellee to dismiss, the appeal are that a number of papers, from page ten to page sixty-six, inclusive, purporting to be a copy of the record plied, upon as .the basis of the action are, or appear to be, original papers filed in the Civil District Court; that these papers are not certified to by any one as being correct. This case was consolidated with another' case having the same title but a different number, viz. 42004 and 42204. The clerk of court, in his certificate, sets forth' that these cases were consolidated by agreement and tried together, but that a separate judgment was rendered in.'each case. In consequence of these sepárate judgments, two appeals were taken. On appeal, case No. 42204, is case No. 13706, and case No. 42004, - is case No. 13697. While these consolidated cases were being tried in the District Court, counsel for the respective parties to. the suit entered into an agreement as folíows, to-wit: “By Mr. Moise: I now offer in evidence the record in .-the case .of-Saulsbacher and Plumber, Receivers, vs. [245] A. & S. Levy-Herman Levy subrogated, being the entire record to date. It is agreed that a copy be submitted to oposite counsel, as a substitute, in lieu of an authentic act.” Appellee, in support of the motion to dismiss the appeal, sets forth that the pages in question of the transcript are typewritten, with a cover (which is the backing of the papers) on which is endorsed a statement saying that they were filed in evidence in the lower court on the 21st of June, 1899; that these papers purport to be a copy of a record (without any certificate) of the United States Circuit Court. Counsel for appellee urges that, while the whole of this record is referred to by appellants as having been filed in the lower court, there was no agreement entered into under which original papers could be transmitted from the record of the lower court to the Sup] erne Court. The certificate of the clerk, in due form, sets forth that the seventy pages of the transcript contain a true and complete transcript of all the proceedings had, documents filed and evidence adduced upou the trial of the present case in No. 42204, except the note of evidence and testimony already certified and sent to the Supreme Court on appeal of the same title, case No. 42004 of the docket, by agreement, consolidated and tried together, but separate judgment was rendered in each case. We think it is manifest that an agreement was entered into between counsel regarding papers which were offered and admitted in evidence. The agreement may have been reduced to writing or dictated hastily; none the less, it shows that the papers were admitted in evidence without objection. Under the agreement, we think that it must have been understood that, though the papers were not authenticated with a certificate as to their correctness, the court should admit them. The clerk, in his certificate to the transcript, certifies that they are correct copies. Appellees urge that, at most, they are original papers and that his counsel did not consent to inserting original papers in the transcript of appeal. There is no evidence that they are original papers except a blank sheet which does not appear to be connected with the papers, on which the deputy clerk wrote “filed” and signed his name. But if the clerk has inserted original papers of his office instead of copies, the mistake which should not have been committed is his and not the appellant’s. It does not appear that the appellant [246] directed the clerk to use the original papers in making up the transcript. The error is, therefore, not imputable to him. The evidence was admitted by consent. The clerk certified that it is a complete transcript. We do not find ground to dismiss the appeal. No error is urged which can possibly be prejudicial to the appellee. The motion to dismiss is, therefore, overruled.