H. G. Smith & Sons v. Succession of Jenkins

SOMMERYILLE, J. The transcript in this case is most defective, and it is made in entire disregard of the rules of this court. It does not contain a copy of the docket entries showing the pleadings filed or that testimony was heard and filed. The transcript only contains copies of some of the minutes of the district court, the opinion and the judgment of court, motion for new trial, appeal bond, and a rule taken by defendant upon the clerk alleging that the record of the cause could not be found, and asking that he show cause why the record should not be produced. The clerk accepted service of the rule, but the record does not show that the rule was ever tried. The appeal was made returnable to this-court on December 30, 1916. Prior to that time defendant applied for and obtained an extension of time to January 30,1917, on the ground that after diligent search the record was missing and could not be found. A second extension was applied for on the same ground, and it was granted to April 23, 1917. Defendant administratrix now alleges that the record is still missing, and that the transcript she has filed is incomplete, and that she cannot bring up a complete transcript through no fault of hers; and she asks that the case be remanded and that she be granted a new trial. [1] To this motion is attached the affidavit of counsel for defendant declaring: [439] “That the stenographer who took the testimony has since died, and his original notes cannot he found by the clerk of court or his deputies, and that they cannot find the record, except what they have made in their present transcript; that .the testimony was originally written out, but that same has been lost, together with the record, and that the same was_ lost without any fault or negligence on the part" of the defendant and appellant herein.” Counsel certifies that a copy of his motion to remand was served upon counsel for plaintiffs. The latter have not made an appearance in this court. Act No. 57 of the Acts of 1886, p. 92, provides for the restoration of original and other papers appertaining to a suit pending in any district court of the state which had been or might thereafter be destroyed by the burning of the courthouse, "or destroyed in any other manner.” Defendant does not make it clear that the record was lost while the case was pending in the district court, and the transcript does not show that the stenographic report of the testimony was ever filed. If the clerk had attended to his duty and had seen that the -notes were made in duplicate and that the copy had been preserved, this particular difficulty of supplying the copy would not have arisen. And we do not see how a copy of these notes, under the existing circumstances of this case, could have been supplied under Act 57 of 1886, p. 92. In Dauchite Lumber Co. v. Lane & Bodley Co., 52 La. Ann. 1937, 28 South. 232, the court remanded the case for a new trial where the record had been lost, and the transcript was defective for that reason. The same will be done in this case. It is ordered that the clerk of the district court in and for the parish of St. Tammany be directed to make further diligent and exhaustive search and inquiry for the lost testimony and missing papers in this cause; that the search be continued through 30 days from the notification of this order to him; and that he report the result of the same to the district judge. It is further ordered, etc., that If the missing testimony and documents be found the same, under proper certification, be forwarded here as a supplemental transcript In this ease. It is further ordered, etc., that if at the end of said limit of 30 days the missing testimony and documents be not found — the same to be shown by the certificate of the clerk made to the judge — the judgment appealed from be held avoided and the ease be considered remanded to the court a qua to be tried de novo, and be proceeded with as in case of new trial granted. It is further ordered, etc., that the costs of this appeal be paid by the party ultimately cast in this litigation.