Horsthemke v. National Surety Co.

On Motion to Dismiss. PROVOSTY, J. [1] The plaintiff in this suit having heretofore obtained a judgment against the New Orleans Railway & Light Company, brought the present suit against the defendant, surety on the bond of said New Orleans Railway & Light Company. On the trial of the present suit the evidence taken in the former suit was offered in evidence. This evidence was left out of the transcript in the present suit for the reason that it was already on file in this court in the transcript of the appeal in the former suit. The transcript in the present suit was filed in this court on the 21st of May. On the 24th, the appellee moved to dismiss the appeal, on the ground that, although the transcript was certified by the clerk of the trial court to contain all the evidence adduced on the trial of the case, it did not, as a matter of fact, contain this evidence taken in the former suit. On the 26th of May, before counsel for appellant had had any notice of this motion to dismiss, he obtained leave of this court to consolidate the transcripts of the two cases. This had the effect of perfecting the transcript. The motion to dismiss is denied.