Heirs of Hoover v. York

[653] On Motion to Dismiss. The opinion of the Oourt was delivered by Poché, J. Appellees move to dismiss this appeal for deficiencies in the record and in the clerk’s certificate, attributable to appellants’ fault. The clerk certifies, in substance, that the record contains a transcript of extracts of minutes of the court in this suit, and in other suits offered in evidence, and of enumerated documents, amounting to twenty-three in number, figuring in this suit. But he signally fails to certify whether the copy of the record which he sends up contains all the testimony adduced on the trial of the cause, and in his affidavit, which is attached to the motion to dismiss, he informs us that the documents offered in evidence, which are not transcribed in the record, were eliminated by him at the request of appellants’ counsel, who directed him to copy only the documents selected by said counsel. Our attention is called to a counter-affidavit filed by appellants’’ counsel, who explains his reasons for instructing the clerk as charged, and seeks to justify his course by showing that, by transcribing all the documents contained in the suits offered in evidence by appellees, the transcript would have been swelled up to some fifteen hundred pages, for which his clients, who are poor, would have been unable to pay; and in which he also urges that appellees had omitted to designate specially which portions of the records of the suits referred to had been offered by them, and that, therefore, the clerk was confused in the selection of such documents to be copied; and he further complains of the discharge by the judge a quo of a rule which he had taken on appellees’ counsel for the purpose of compelling them to make such selection of documents. An inspection of the note of appellees’ evidence shows that they offered in evidence “ the entire record and other proceedings had and all papers filed” in two distinct suits which are fully described. It was, therefore, the plain duty of the clerk, under sections 2 and 6 of rule one of this Oourt, as amended on November 2d, 1880, concerning the omission of ordinary process of court and returns thereon, to have copied all the documents contained in the records of said suits. He was ready to perform such a duty, when directed by appellants’’ counsel to do otherwise, and the result is a transcript which does not contain all the testimony adduced, and thus fails to give us knowledge of all the matters argued or contested below. We find no error in the refusal of the District Judge to interfere by rule in the making up of the transcript of appeal, the sufficiency of which is exclusively within the province and under the control of the appellate tribunal. [654] The transcript and the certificate of the clerk are both fatally deficient, and cannot support the appeal. C. P. Art. 896; 21 An. 458; Bacas vs. Smith, Labat & Co. vs. Décuir, recently decided and not yet reported. It is, therefore, ordered that this appeal be dismissed at appellants’ costs.