Thibodeaux v. Winder

Motion to Drsanss. The opinion of the Court was delivered by Poché, J. Plaintiff appeals from a judgment sustaining a plea .of prescription to his petitory action, and dismissing the same. Appellee’s motion is based on the alleged deficiency of the transcript, which does not contain all the evidence, parol and documentary, which had been offered and considered below ; and because it is not shown that appellant had made any effort, as required bv law, to obtain a statement of [227] facts. Both grounds are supported by the record, and the motion to dismiss must therefore prevail. Appellant's contention that the omission to bring up the missing evidence is not imputable to him, because it was the duty of the appellees to liave reduced their parol testimony to writing, and to have seen to the liling of their documentary evidence, is untenable. No law compels a party to cause his testimony to be taken in writing; the provision of the law on the subject is simply directory. C. P. art. 601. This Court has held: “Because one of the parties has not caused his oral testimony to be taken down and his written evidence noted, it does not follow that, in the event of an appeal by his adversary, he should be deprived of it and placed at the mercy of his opponent. The appellant should in such a case, have a statement of facts seasonably made as the law directs.” Morrison vs. Lynch, 36 Ann. 612 and authorities therein cited. In support of his plea plaintiff relies on a document, which he filed in this Court within ten days after the record was brought up and which he styles an assignment of errors. But an inspection of the document shows that the errors assigned therein are not errors of law appearing on the face of the record, but simply errors of fact, or a complaint that the plea of prescription was sustained on insufficient evidence. Hence the assignment does not come up to the requirements of the law, and it cannot avail the appellant as an assignment of errors, or as a supplement to the evidence, which had been considered below, or of a statement of facts, prepared in compliance with the “law. C. P. Art. 897. In the absence of proof to the contrary, this Court must presume that the judgment of the lower court was rendered on legal and sufficient evidence. The clerk’s certificate shows affirmatively that certain designated parol testimony, which had been offered and heard below, and that certain documentary evidence, which had been received at the trial, are not included in the transcript, and it is elementary that such a condition of things fully justifies the conclusion that the defense was sustained by due and necessary proof. Fowler vs. Smith, 1 Rob. 448; Landry vs. Jefferson College, 7. Rob. 179; Huffner vs. Hesse et al., 26 Ann. 48; New Orleans vs. Labatt, 33 Ann. 107. From the foregoing considerations it follows that this appeal is not legally or properly before us, and that the fault therefore is already imputable to appellant. It is, therefore, ordered that the present appeal be dismissed.