Grunow v. Menge

On Motion to Strike the Case from Docket. The opinion of the Court was delivered by Bermudez, C. J. When this case was called the appellee moved that it be stricken from the docket, on the ground : 1. That the suspensive appeal taken from the judgment was dismissed by a final decree. 2. That a proper transcript of the record of the case below, in which a devolutive appeal was subsequently obtained, returnable here on the first Monday of November last, ivas not made and filed in this Court. 3. That the appellant has not complied with the law in the bringing up of the proper transcript, etc. The facts are the folloAviug: A judgment having been rendered against the defendant, he took a suspensive appeal from it, returnable here on the first Monday of November, last year (1883). He afterwards filed a transcript in this Court and next took a rule in the lower court to have the order for a suspen926 sive appeal rescinded and the appeal dismissed, on the ground that the surety was not good and solvent. This rule was made absolute. An application was then made to this Court for a prohibition to the lower court, which was refused; thus sustaining the ruling of the district judge. The defendant next obtained a devolutive appeal, returnable as stated, but did not cause a full transcript of the record below to be made and to be filed hero on the return day, or within the usual delay following it. He simply caused a copy to be made of the proceedings had since the taking of the suspensive appeal, having the shape of a transcript. This document was on the return day filed, under the number under which the first transcript of the case taken up by the suspensive appeal had been filed, viz: No. 9022. The clerk’s docket and the alphabetical index to it do not show that on the 3d, 4th, 5th and 6th of November of this year any transcript was filed in this Court under any new or current number in which Grunow is plaintiff and Menge defendant. The certificate of the clerk attached to the copy of the supplementary proceedings does not show that, together with the transcript filed in this Court under No. 9022 of its docket, it constitutes a full and correct transcript of proceedings had, etc., in the case on which the devol-utive appeal was taken. The appellee claims that ho could find no clue to the filing of any proceedings in this Court under the devolutive appeal, and that there is no case to be tried before this Court. ■ Clerks are required by law to keep two record books, in one of which they are directed to set down the titles of all causes depending before the Court, mentioning the date of the filing of the record and the names of the counsel employed. In the other book they must enter all the orders, judgments rendered and all the motions made. Both books are to remain open to the inspection of parties concerned and to be accompanied by au alphabetical list containing the titles of the causes. C. P. 775-8. The clerk of this Court is required by its rules to docket cases in the order of tlieir filing. Rule III (1). The appellee was under no obligation to bunt up case No. 9023 to ascertain whether the transcript to be made, after the devolutive appeal bad been taken, bad been filed in this Court. That transcript, if made, should have been filed under a new number, to be entered on the docket on or after the return day or within the [927] delay of grace. The failure to have it thus filed aud docketed must be visited on the appellant. It is not enough for an appellant to hand a transcript to the clerk. He must see at his risk that it be- properly filed and eutered on the docket. 35 Ann. 151, Ford vs. Brooks. The invoked authority in the Yredenburg case, 32 Ann. 561, has no application to the present matter. No objection was made to the filing of the last transcript under the number given to the first transcript filed; and the clerk, in attesting the last transcript made, had certified that'it and certain other transcripts filed in the Supreme Court, did contain a true, correct and complete transcript of the proceedings had, etc. In the Succession of Irwin, 33 Ann. 64, we took pains to announce that the privilege should be exercised with discretion and within reasonable limits, and, when sought, that reference should be made to the title and number of the other transcript, which otherwise would not be noticed. In the present case complaint is made of the filing under an anterior and improper number, of the incompleteness of the transcript, and of the insufficiency of the clerk’s certificate. The filing under the previous number is certainly irregular, and the clerk’s certificate does not connect the last transcript with the first as filed in this Court. A reference to the number of the case in the lower court does not remedy this fatal defect. Going, however, to the length of conceding that the paper filed may be considered as properly docketed — that is, numbered and indexed in due time — the incomplete certificate of the clerk, showing its deficiencies, was enough warning to the appellant to put him on his guard, and he has failed to supply the same. It would be impossible for this Court to pass upon the merits of this controversy on this mutilated transcript. It is therefore ordered and decreed that this case be stricken from the docket of this Court at the cost of the appellant Menge. Fenner, J., concurs in decree. Todd, J. and Manning, J., dissent.