Becnel v. Louisiana Cypress Lumber Co.

On Motion to Dismiss the Appeal. BREAUX, C. J. [1] Defendant and appellee moved to dismiss the appeal on the ground that the transcript is absolutely incomplete and defective. , It alleged that it was made under the exclusive direction of plaintiffs and appellants; that documents were included that had never, been introduced in evidence, and others were excluded that should have been copied; that the transcript was not filed in triplicate. That pages from 150 to 183 were not included in the duplicate copy. Counsel for appellee filed affidavits in support of their motion to dismiss relating the facts. The clerk of the district court, in addition to the certificate made out in due form attesting that the transcript was complete, filed several affidavits. In the first affidavit he (the clerk) swore to a state of facts agreeing in the main with the affidavit of counsel for defendant. The other affidavits of the clerk vary from his first. The appellants also have filed affidavits, and have given their version of the facts. They obtained several certiorari addressed to the clerk to supply the missing documents. Mr. L. A. Morphy, at the time of counsel for appellee, swore to a state of facts. Mr. Monroe, also of counsel for appellee, states in his affidavit that he and associate counsel went to the parish seat of St. John parish and called the attention of the clerk to his affidavit dated the 24th of February, 1913. He complained of the transcript. In answer, the clerk stated to him that the transcript had been brought to him by Mr. De Poorter; that it had been prepared in the office of Mr. Perkins. In regard to the errors to which his (the clerk’s) attention was called, he (the clerk) asserted that they were not his errors; stated that he had not checked the documents copied. The other counsel of defendant, Mr. Marx, said that a large number of documents which had been introduced in evidence were missing from the transcript. He mentioned that the missing papers were the records in the succession of M. A. Becnel, and papers in matter of the succession of Gaston Becnel, and- said that he had reason to believe that they were in possession of counsel for plaintiffs and appellants. 1-Ie further stated that he mentioned to the clerk that it was his purpose to call the attention of the Supreme Court to the omissions. He states further that, if they were acts of omissions of the clerk, the appeal would not be dismissed, [471] but, if of counsel, the appeal would be dismissed. To recount all the facts which arose in matter of this transcript would take unusual space for a decision of a motion to dismiss. Mr. Perkins, of counsel for the plaintiffs, also filed an affidavit and explained why it was that he had documents copied by a typewriter. He said it was to expedite the preparation of the transcript. He swore that he did not have the missing documents; that he had made diligent search both in his office and in the office of Mr. De Poorter, his associate counsel. 1-Ie also stated that the affidavit of the clerk of the 24th of February is a correct statement of the facts. He stated in the affidavit that he had nothing to do with omitting the copying of documents in the record; that he knew nothing of the record in the tutorship proceedings relating to the Becnel minors. Mr. De Poorter, the other counsel, positively swore that he had nothing to do with preparing and compiling the transcript, knew nothing of the missing records, and had nothing to do with the clerk’s certificate; did not prompt it at all. The clerk stated that, on page 2 of an affidavit made prior to that of February 24th, he appears to have stated that he signed the certificate upon the representations made by counsel for plaintiffs and. appellants; that the same was a full and complete transcript of the entire record of the case, and so forth. The facts are, the clerk swore, in his second affidavit (February 24th) that Mr. Perkins was not present, and that he did not communicate with him upon the subject either verbally or in writing; that Mr. De Poorter handed him the different packages of papers as having been made up in Mr. Perkin’s office. Counsel for defendant calls our attention to the affidavit of February 19th, in which the clerk, affiant, states, that: “At the time he signed the certificate annexed to the transcript of appeal he did so upon representations of counsel for plaintiffs and appellants, that same was a full and complete transcript of the entire record of the case, and that the same contained all the documents and evidence necessary.” We have seen that both counsel for plaintiffs disclaim that they did anything of the kind. Mr. De Poorter swears— “that he had nothing to do with the preparation and compilation of said transcript of appeal or the records therein contained.” Plaintiffs applied for writs of certiorari to-this court to complete the record. The writs were granted ex parte and are not binding upon opposing counsel if they have good grounds to urge against their consideration. The clerk of court has made a number of copies, part of his return in answer to the writ, and after enumerating these copies in his return he concludes with the statement that Mr. De Poorter, one of the attorneys for plaintiff in rule, produced and tendered to him a copy of the petition which had been introduced in evidence, and which it seems is numbered 7, and also copy No. 10, and asked that they be made part of the returns, as the original was missing; that he (respondent), being unable to produce the original, as-it could not be found, produced and copied the copies tendered by De Poorter together with his (De Poorter’s) affidavit that he made these-copies in 1911; that they were true copies made at the time that he instituted this-suit. Counsel for defendant and appellee, who-have moved to dismiss the appeal as before-mentioned, disclaim any intention of imputing deception to opposing counsel or of am intention of filing an incomplete transcript. They state in their brief that they claim the transcript is incorrect owing to the careless [473] ness of appellant by whom it was prepared. Tbe question before us, then, is whether the appellants or their counsel are responsible for the incomplete transcript, or the clerk. As before stated, if counsel have taken part in making up this record as it is, the appeal would have to be dismissed; not otherwise. We are decidedly of the opinion that the transcript is not all that it should be. Two modes suggest themselves: First, to dismiss the appeal; second, remand the case. Emanuel Church v. Riedy, 104 La. 314, 29 South. 149; Grubbs v. Pierson, 111 La. 101, 35 South. 474. Appellees have not alleged what bearing the alleged defectiveness has upon the issues. Something has been said in argument (to which we have given consideration) about the responsibility of plaintiff for the defective and incomplete state of the record. We have no hesitation in stating that, if the defect is due to the unfortunate intermeddling of counsel for appellant, then the court would be prone to dismiss the appeal, for an appellant should not lend himself to such an irregularity. We have not found that the complaint is well founded. Plaintiffs did not in any way interfere. (We have before stated the facts as relates to counsel.) The record was delivered to them with a full certificate of the clerk (whom we infer they paid), and it was filed in this court. It may be stated as a fact, for there is nothing to show the contrary, that plaintiffs had nothing to do with losing the papers that cannot be found. We cannot refrain from stating that the whole responsibility under the law is with the clerk of court, and, if counsel do not agree in regard to the documents to be copied in the record, he (the clerk) should give special attention to the transcript and see that it is made complete, or, if he is not given sufficient written authority as to what documents to copy, he should prepare the transcript himself and give due care to the safe-keeping of documents. A case may be reduced to a sad plight when documents are missing and the transcript incomplete. Evidently there was no agreement of counsel, made apparent by the number of affidavits. The clerk of court swore that there was no interference on the part of Mr. De Poorter. He (the clerk) is emphatic and clear upon the subject in regard to both counsel. The brief contains the statement that Mr. De Poorter took no active part in the compilation of the transcript. [2] The next proposition stated above is whether the case should be remanded. The clerk of court having certified to the completeness of the transcript, to dismiss the appeal because of an incomplete transcript would be entirely exceptional. Succession of Theriot, 114 La. 611, 38 South. 471. Now, as to the alleged failure to file' three copies of the transcript: Three copies were filed at the same time, on the 17th of February, 1913, within the time required. There are even more mistakes in them than in the original copies. Each of the triplicates is sustained as to its completeness by the clerk of court. The case is remanded to the district court to the end that the clerk of court may copy all necessary documents in one transcript and return it to this court. The transcript heretofore filed is forwarded to that court with directions to prepare it anew, all to be done within 20 days. The costs to abide the final decision of case. Motion to dismiss overruled. PROVOSTY, J., recused.