Raphiel v. Louisiana Ry. & Nav. Co.

On Motion to Dismiss Appeal. By the WHOLE COURT as then constituted. O’NIELL, J. Plaintiff, appellee, has moved to dismiss this appeal because the testimony, on which the judgment by default was confirmed, was not reduced to writing. He contends that articles 602 and 603 of the Code of Practice, requiring the district judge, under certain circumstances, to furnish a statement of facts upon which the judgment was rendered, do not apply to a case where the judgment went by default, and the testimony was not required to be reduced to writing. We are not referred to any ruling in support of appellee’s contention. On the contrary, in Fletcher v. Ozone Lumber Co., 123 La. 514, 49 South. 158, articles 602 and 603 of the Code of Practice were considered as applicable to a case like this, where judgment had gone by default and the cestimony was not reduced to writing. The district judge certified, in his statement of facts, that counsel for plaintiff and defendant were unable to agree upon a statement of facts. Counsel for appellee do not deny that the judge’s statement of facts is correct. Their contention is merely that the judge’s statement cannot be taken as a substitute for an exact record of the testimony which was not required to be reduced to writing. The provisions of the Code of Practice being otherwise, the motion to dismiss the appeal must be overruled. Whether the facts as stated by the district judge are sufficient to sustain the judgment, appealed from is the question to be decided when the case shall have been submitted on its merits. The motion to dismiss the appeal is overruled.