Caldwell v. Townsend

Matthews, J. delivered the opinion of the [639] court. This suit was commenced by attach-J ment, in which Millaudon is made garnishee, and interrogated as to the possession of funds . belonging to the defendant or being indebted ío him. The answers to the interrogatories, by the garnishee, contain an absolute denial of any funds in his hands, and of being in any manner indebted to the defendant. The plaintiff, after the return of these answers, applied to the court below for a commission to take testimony in New York for the purpose of falsifying the oath of the garnishee. The commission was refused, and no bill of exceptions was taken to the opinion of the court, in this re-specif pronounced; neither was it directly appealed from as being an interlocutory decree which caused an important injury. The cause 4 . ^ proceeded to final judgment, by which the parish court dismissed the suit, on the ground that no property had beén found to support the suit, and from this judgment the plaintiff appealed. The record does not exhibit a statement of facts or any thing thereto equivalent; nor does it contain any bill of exceptions. To supply these deficiencies the appellant wishes to assign as matter of error apparent on the face of [640] the Record the opinion of thecourt by which ⅛ r the commission to take testimony was refused. This we think cannot be legally done. It has been repeatedly decreed by this court that nothing can be assigned as error apparent which depends on the facts of a cast?, and might have been supplied by evidence or admissions, which cannot appear except by statement offacts, testimony taken down in writing, or bill of exceptions. Now, in the present case, the garnishee may have offered to admit all the facts disclosed by the affidavit of the plaintiff as a basis for the commission denied; but whether such offer was made or not, cannot appear, on account of the imperfect state of the record. Conrad S? Grymcs for the defendants. It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.