Samuel Smith & Co. v. Morrison

..Howei.l, . J. ■ This suit was brought as a personal action on two1 promissory, notes, and afterwards an amended petition was filed, alleging that they were given as part of the price of a plantation, and asking'-that .a.'special mortgage and vendor’s privilege, as shown by the annexed act of sale and mortgage, be recognized and enforced. Judgment. was rendered on default and ■ confirmed for tlio amount of tbe notes wi th mortgage and privilege as claimed. The defendant has taken a, devolutivé appeal and he assigns as error that there is no evidence to. establish the mortgage and privilege allowed. ■ . The certificate of the clerk states that the record contains “a true and. correct transcript of all the documents on file and proceedings had (there being no testimony,offered) on the trial of the case, etc.” At the instance of the plaintiffs’ counsel a certiorari was issued for the purpose, and in answer thereto the clerk amended his certificate to read thus: “that the foregoing and within twenty-six pages do contain a true and correct transcript of all the documents on file, evUlencc.adduced and proceedings had on the trial of the case, etc.” The notes paraphed, but not tbe act of sale aiid mortgage, alleged to be annexed to tbe amended petition, are in the record, and there is no minute :of. evidence. . The evidence ip establish the mortgage and privilege set out and claimed is wanting; but the record satisfies ns that the notarial aet in question, if not produced in court on the trial, was in the possession or control of counsel, and in the exercise of an equitable discretion, vested in'this court-, by art. 906 C. P,, plaintiffs should, under the peculiar circumstances of this-case, be allowed an opportunity to supply an apparently inadvertent omission. The facts that the notes are paraphed and .that the -judgment as drawn up and signed contains a description of [136] the mortgaged property, as, it is alleged, is set forth, in the act of sale annexed to the amended petition, ren der it probable that the said-act was before the judge; but upon-the record as certified we cannot,affirm the judgment or dismiss the appeal. While we would not, even indirectly, encourage negligence in litigants v or théir counsel, we feel authorized tq remand the case to give both parties- an opportunity to establish their rights, in the belief that the ends of justice will thereby bo sub-served. See 13 L. 138;. 15 L. 231; 8 R. 120; 9 R. 387; 12 R. 518; 2 A. 846; 9 A. 95; 10 A. 94; 4 R. 323 ; 4 A. 231. It is therefore ordered that the judginent appealed from be reversed and the cause remanded for further proceedings according to law. Plaintiffs to pay costs of appeal.