John Calder & Co. v. Their Creditors

[347] ON Motion to Dismiss Appeal. The opinion of the court was delivered by Breaux, J. From a judgment dismissing their demand, Peter Berger, Executor, et al. and Mrs. Emily P. Shields and her husband, William'Shields, have taken a devolutive appeal. The syndics of John Oalder & Oo. and D. R. Oalder individually, •defendants and appellees, have moved to dismiss the appeal on the ¡grounds: That the clerk’s certificate, made according to instructions of appellant, is defective and insufficient. That material and important evidence for the defendant was not •copied in the transcript. That the ledgers 6 and 4 of John Oalder & Co. have not been filed in original in this court. After the motion to dismiss had been filed the appellant applied for a writ of certiorari to the clerk of the court to certify up the whole record in the case. The clerk tendered his answer, alleging that he has complied with •the order. In the event of an appeal an agreement was entered of record in the court a qua that the ledgers were to be brought up in the ■original. The certificate required was properly made to yield to the agreement, for the clerk could not certify the books brought up in the ■original. The appellants have, through counsel under oath, stated the •causes that prevented them from producing and lodging the books in the Appellate Court. The books and documents are at this time before the court under a certiorari from this court. “ When by subsequent order of court imperfections in a transcript .are cured, a pending motion to dismiss will be overruled as a matter of course.” Huyghe vs. Brinkman, 38 An. 837; Hughes vs. Murdock, 45 An. 935. With reference to the documents not copied in the transcript, •being schedules or lists of property. The defendants (although 'they were brought up by the clerk of •court as part of the record in answer to the writ of certiorari') urged [348] that ib was proper on the part of the clerk not to include them in the transcript. They allege that while offered, the introduction, filing and stamping is lacking. The record discloses that the following question was propounded: “ Will you examine this paper numbered 35,056, filed February 15, 1892, in case entitled John Calder & Co. and David R. Calder vs. Their Creditors, and state what this purports to be?” To this question appellants objected. The court overruled the objection and admitted the document, to which ruling a bill of exception was reserved. Following this rule counsel for appellees offered “the schedule in the respite proceedings identified by the witness, and the schedule in the insolvency proceedings, which he has just identified, said documents being filed in suits Nos. 32,894 and 35,056. The same objection was made as was offered to the admissibility of the documents just previously offered. The ruling was the same and a bill was reserved. The documents, the clerk’s statement of facts shows, were introduced and admitted in evidence. They were as alleged not stamped. . Though they, the appellees and defendants, should have had them stamped when they were offered; considering all the facts and circumstances in this case the court will permit the stamping at this time, as it will complete the record and as it does not occasion any delay in the hearing of the case on appeal. The ease has not been submitted for decision. But the time within which appellees are authorized to stamp the documents is limited to three days from this date, otherwise they will not be considered as instruments of evidence before the court. W. S. Reddick vs. R. M. White, 46 An. 1198. Appellees’ motion to dismiss the appeal is denied.