Lane v. Illinois Central Railroad

On Motion to Dismiss. The opininion of the court was delivered by Fenner, J. The motion has two grounds, viz.: 1. That a plan offered in evidence by plaintiff and duly filed has been omitted from the transcript by appellant’s fault. The clerk’s certificate is complete and protects appellant in the right to supply the omission, on discovery, by certiorari, which he has done. 2. That a document marked xy, which was offered in evidence by defendant, is omitted from the record because the defendant had failed to have the same properly stamped and filed, which justified the clerk in omitting it, and places the fault entirely on the defendant appellant. Our attention is called to the provisions of Act 136 of 1880, which require evidence to be stamped before filing, and also declare that testimony not stamped and filed shall not be copied into the transcript or considered by the appellate court. It appears, however, that in this case most, if not all, the evidence which was offered and met on the trial, was not stamped and filed till some time after the judgment was rendered. It further appears that it is the custom of the clerk’s office, in making up transcripts of appeal, when it is discovered that evidence, which has been offered and used on the trial, has not been stamped and filed, to notify the counsel interested in order that he may remedy the defect; that in this case the clerk, in the haste of making up the transcript, overlooked the document xy and failed to notify counsel or to include it in the transcript. As soon as the motion to dismiss informed counsel, who had relied on the clerk’s practice and his complete certificate, that this document had not been stamped and was omitted from the transcript, he supplied the oversight by having the same properly stamped, and now brings up this document also under his certiorari. It thus appears that in practice the rigid requirements of the [835] ■statute- are .relaxed by common. consent; that, unless insisted on, trials are not delayed to affix stamps during the course thereof, but that the stamping and- filing, may be done after trial, and even, as in this case, after .judgment, and after appeal while the transcript is being made. Under this practice., if, as appears, it be the. custom of, the clerk’s ■office to notify counsel and afford opportunity to affix .stamps inadvertently omitted, we do not think the failure of the clerk to notice an unstamped document and to give the customary notice, should be visited as a fault on the appellant, destroying his right of appeal, when the omission has been inadvertent and is supplied as soon as discovered and before the appellee has suffered the slightest harm. The law is intended to secure the contributions to the judicial ■expense fund- — not to set traps for litigants. The case is very different from that of Schmitt vs. Drouet, 42 An. 716. Motion denied.