Tolchinsky v. Succession of Lirette

[1069] On Motion to Dismiss Appeal. MONROE, O. J. [1] Plaintiff’s demand having been rejected, and his suit dismissed, he was granted an appeal, suspensive and devolutive, returnable to this court on July 18, 1918, upon giving bond in an amount fixed by the trial judge, which he gave. On July 17, his counsel filed in this court an application for an extension of the return day to July 30, which was accompanied by an affidavit of the clerk of the district court to the effect that he needed the additional time for the completion of the transcript, and, the extension having been granted, the transcript was filed on the return day thus fixed. On September 30 following, counsel for the appellees filed the motion now to be considered to dismiss the appeal, on the ground that the transcript was ready for delivery prior to July 18 and that the extension of time was obtained by reason of this court’s having been misinformed as to the facts. There is attached to the motion an affidavit by appellees’ junior counsel, from which it appears that he called upon the clerk of the district court, “not less than a week” before the first return day, was informed that the transcript was completed, and was shown, in the vault of the clerk’s office, the triplicates thereof, bound and ready for filing. The affidavit further sets forth that the affiant called upon the clerk again on the return day (July 18), and, upon inquiry, was told by that officer that appellant’s senior counsel had “a day or so before” stated that the notice of the completion of the transcript, with the enclosed bill, had been delayed in reaching him, and that he desired more time in which to communicate with his client, who lived in New Orleans, relative to taking the appeal; that he (the clerk) informed appellant’s counsel “that he (the clerk) could conscientiously grant the desired extension because he desired to collate the said transcript, and that, accordingly, he then applied to the Supreme Court for an extension of the return day until July 30, 1918, and that only that morning * * * he had received from the Supreme Court the notice of the extension granted.” The affidavit further sets forth that “affiant then and there notified the said clerk that he would make this affidavit before the Supreme Court and,move for the dismissal of the appeal.” In connection with their motion and affidavit, counsel for appellees call the attention of the court to the fact that the certificate of the clerk, .as contained in the transcript, to the effect that it is complete and accurate, bears date July 10, 1918. Opposing the motion to dismiss, counsel for appellant submit a counter affidavit by the clerk, of which we make the following summary, to wit: That the original return day was fixed at his instance because he then thought he could complete the transcript by that day; that he is a member of the “Local Board” of his parish, and that, its work having occupied most of his time, he intrusted the making of the transcript to his assistant; that the testimony taken on the trial had been typewritten, but “single spaced,” indexed, and bound, when he discovered that it was not in accordance with the rules of the Supreme Court, regulating the preparation of transcripts, and had some correspondence with the clerk of that court on the subject, all of which occasioned delay; that he concluded that it would be better to rewrite the testimony; that, about a week before the (first) return day, the transcription of all the documents then in the record had been completed, the sheets placed between black covers, but unbound, and placed in the vault, and, in that condition, were shown to appellees’ counsel; that affiant had not then inspected the transcript, but later discovered documents which had not been transcribed, and also discovered clerical errors, all of which would neces [1071] sítate the taking apart of the transcript, the correction of the errors, and the changing of the index; that affiant realized that it would have been dangerous tq file the transcript in its then condition, and that a collation was necessary, in order to enable him to make his certificate; that a day' or two before the return day Mr. Butler, of Butler & Wurzlow (counsel for appellant); called on affiant in order to ascertain whether the transcript would be ready, and expressed a desire to communicate with his client in New Orleans before taking it, and that affiant told him that he (affiant) could, conscientiously, ask for an extension, and explained the reasons; that, prior to July 18, he had informed Mr. Gagné (appellees’ junior counsel) and also Mr. Butler, that he had discovered documents belonging to the suit which had not been transcribed, and that appellant’s counsel had insisted that they be transcribed; that immediately after his conversation with appellant’s counsel he prepared the affidavit for the extension of time, and also prepared the petition, all of which was done without the dictation of appellant’s, counsel; that it would have been absolutely impossible for him to have delivered the transcript in a completed state on July 18, and that his conversation with appellant’s counsel did not alter the situation, which was that the transcript was not in such a condition that affiant could sign a certificate as to its accuracy, and if affiant had signed the certificate at that time he would have been guilty of certifying to something that was untrue; and the real reason for asking the extension was to gain time to put the transcript in shape for the proper certificate; that all the work of remodeling the transcript, changing the index, transcribing the documents previously written, and collating the transcript with the original documents was done after affiant had asked for the extension, and that the work required several days; that appellant’s counsel, stated at the time that he called on affiant about the transcript; that he was ready to pay for same, if affiant was ready to deliver it. Counsel for appellant complains that counsel for appellees should have filed an ex parte affidavit in this court in support of their motion to dismiss. There is no merit in the complaint. It is the usual method of bringing to the attention of the court questions affecting its appellate jurisdiction which are not disclosed by the record. Such affidavits are not acted upon without giving the other party in interest an opportunity to be heard, and, after such hearing, if this court deems it advisable, it may hear testimony or may refer the question presented back to the trial court in order to obtain it. Oertling v. Commonwealth Bonding & Casualty Co., 134 La. 26, 63 South. 611. Counsel are also mistaken in the supposition that, though the appeal should be dismissed, it might be renewed, and hence, that the dismissal would be a vain thing. It is settled jurisprudence that where the appeal is perfected by the filing of the required bond, and the appellant fails to lodge the transcript in this court within the delay allowed for that purpose, the appeal is considered abandoned. Edenborn v. Kirkland, 136 La. 1021, 68 South. 111, and authorities there cited. There are statements in the affidavit of the clerk which seem to be irreconcilable with each other, and not easily reconciled with those contained in the affidavit of appellee’s counsel. He admits that he told the counsel on July 18 that the transcript had bpen completed, but elsewhere in the affidavit, he says that he told both Mr. Gagné and Mr. Butler, prior to July 18, that he had discovered documents that had not been transcribed, and he gives as one of the rea [1073] sons why the transcript was not completed, and conld not have been completed, on July 18, that it was necessary to transcribe the discovered documents. He makes the following statements in his affidavit, to wit: “That it would have been absolutely impossible for affiant to have delivered said transcript in a completed state on the 18th of July, and that any conversion he had with Mr. Butler did not alter the condition at all, which was that the transcript at that time was not in such condition that affiant could sign a certificate as to its accuracy, and, if affiant had signed the certificate at that time, he would have been guilty of certifying to something that was untrue ; and the real reason for asking the extension was to gain time to put the transcript in shape for the proper certificate.” We have, therefore, two certificates from the clerk: The one, that the transcript was completed on July 10; the other, that it was incomplete on July 18, and that he required an extension of time to complete it; and we have his admission that he made a particular statement to Mr. Gagné on July 18, and his affidavit that the facts as they then existed though not within his knowledge did not authorize that statement; and, then, again, he appears to say in his affidavit that he had compmnieated these facts, or the more important one, to both Mr. Gagné and Mr. Butler at some time prior to July 18. It might reasonably be supposed that the clerk improvidently certified the transcript on July 10, and, subsequently, after making alterations in it, improvidently neglected to certify the new creation; but, if that be true, then his official certificates would seem to lose something of their value and sanctity, and the appellant is threatened on the one hand with the dismissal of his appeal that, perhaps, should be maintained, and appellees are threatened on the other hand with the maintenance of an appeal that, perhaps, should be dismissed in either case upon the basis of an improvidently issued certificate. From any point of view (since the one certificate is as much before this court as the other), we have no positive assurance that the transcript now iri this court, certified as of date July 10, but discredited by the affidavit of, the certifying officer, of date July 17, has ever been completed. We therefore conclude that, in order to afford an opportunity for the clearing up of the situation, and more particularly in view of the fact that we are not disposed to consume valuable time in dealing with the transcript in its present unfortunate condition, the case should be remanded, with leave to the litigants, respectively, to adduce such testimony in the usual manner, as may be relevant and admissible, concerning the facts here involved, and in order that the appellant may provide us with a transcript concerning the authentication of which there shall be somewhat less uncertainty. It is accordingly ordered/that this case be remanded to the district court, with instructions to that tribunal to receive such relevant testimony as may be offered on behalf of the appellant and appellees, respectively, upon the question whether the delay in the completion of the transcript of appeal herein was attributable to any fault of the clerk or to any fault of the appellant or his counsel, the testimony, when taken, under the supervision of the trial judge, to be returned to this court. It is further ordered that appellant have leave, in the meanwhile, to lodge in this court a transcript of appeal which is not discredited by a later certificate from the same officer than that which it bears, and to withdraw, if need be, the transcript (in triplicate) now on file. O’NIHLL, J., dissents, being of the opinion that the motion to dismiss the appeal should be overruled. PROVOSTY, J., absent on account of illness, takes no part.