Bossier v. Carradine

Laeauve, J. This case is before us on a motion to dismiss the appeal, on the following grounds: Because a complete and full transcript of the record has not heesa brought up by the plaintiff and appellant, T. S. Bossier, inasmuch as; Kb.® consolidated suits Nos. 693 and 694 of the District Court, particularly N®. 693, W. P. Kennedy v. T. A. Bossier, made part of the defendant’s sai [262] swer in this suit, has not been copied and brought up; because the record ■jvas not returned and filed in Court on the 4th Monday of January, 1866; and because no assignment of error has been made, according to Article 897, Code of Practice. This case comes up from a judgment rendered in favor of defendant, sustaining an exception made by said defendant to the form of the action, and on the face of the petition, as follows: “And now the defendant, W. E. Kennedy, of the city of New Orleans, appears, excepts, answers and says, that no just or legal cause is set forth in the petition for injunction issued in this case; wherefore he prays the same may be dismissed, with costs.” Nothing more than the exception was tried, the Judge sustained it and dissolved the injunction; in such a case no testimony of any kind is offered; it is a trial on the face of the petition. Besides, the certificate of the Clerk is in due form, showing that the transcript contains a true and complete copy or transcript of all the proceedings had, of all the evidence and testimony adduced, and of all the documents filed in the suit. When such a certificate as this accompanies the record, an assignment of error is not necessary. C. P Articles 895, 896. The record was filed in due time in this Court. Legislative Act approved December 21, 1865. Motion to dismiss overruled.