Harrison v. Creditors

The opinion of the court was delivered by Fenner, J. Counsel for appellee treats this appeal as if there were nothing before us except the brief transcript filed herein. In this he errs. The certificate of the clerk is to the effect that this transcript, “together with the transcript of appeal in this case already filed in the Supreme Court,” do contain, etc. There was no [92] necessity for a recopying of the matters already embodied in a .transcript on file in this court under an appeal previously taken in the same cause. Vredenburg vs. Behan, 32 An. 561. But this does not help the case of appellant. The matters referred to by his counsel as contained in the former transcript, though within our cognizance, have no conceivable relevancy to the subject matter of this appeal, which involves nothing but the correctness of the judgment rendered on the opposition of John R. Picton, and appointing him syndic of the insolvents. The proceeding referred to took place on February 28, 1890, when the opposition of Picton was not on trial, and concern entirely different issues. The record shows that the opposition was fixed for May .21, 1890, and was then tried and submitted, all parties being duly represented. The minutes show that it was submitted “after hearing pleadings, evidence and counsel.” The judgment recites, “Considering the law and evidence to be in favor of opponent,” etc. The transcript contains no evidence, and no note of evidence. If there were anote of evidence, and the evidence did not appear in the record, the clerk’s certificate might protect appellant against an apparent diminution of the record, which might be supplied under certiorari. But the decisions.are uniform that where no note of evidence appears in the record, the court will presume that the judge proceeded on proper evidence. Heffner vs. Hesse, 26 An. 148; State vs. Monasterio, Ib. 734; State vs. Campbell, 23 An. 446; Simmons vs. Howard, Id. 504; Bank vs. Bringier, 22 An. 118. Judgment affirmed.