Bilich v. Mathe

89 So. 628, 149 La. 484, 1920 La. LEXIS 1730

• Court: Supreme Court of Louisiana
• Decided: April 5, 1920
• Docket: No. 23799
• Status: Published

Opinions

On Motion to Dismiss Appeal.

O’NIELL, J.

[1] The defendant has moved to dismiss this appeal for. irregularities in the appeal bond. He obtained, in the district court, a rule on appellate to show cause why the appeal should not be dismissed; but the rule was not served upon appellant, nor was any further proceeding had in the matter. According to section 9 of Act 112 of 1916, an appeal should not be dismissed for any inaccuracy or error in the appeal bond, or for insufficiency of .the security, unless the appellant has been put in default, in the district court, in the manner directed by the statute: See Hurry v. Hurry, 144 La. 877, 81 South. 378.

The motion to dismiss the appeal is overruled.

On Motion to Eliminate Depositions from the Record.

[2] The defendant, appellee, has filed a motion praying that the depositions of Jacob Bilich, Philip J. Schoen, Anthony Bilich, Mrs. Anna Aiola, Mrs. Agnes Rittener and Josephine Aiola be eliminated from the transcript of appeal, and be disregarded by this court as evidence in the case, because the depositions, which were taken under commission to be used in evidence on behalf of plaintiff, were not in fa,et offered in evidence. The record discloses that the depositions were not offered in evidence; hence they cannot be considered by this court in deciding the ease upon its merits. See Wilkin-Hale State Bank v. Tucker (No. 24421) 148 La. 980, 88 South. 239, in which the opinion was handed down to-day.

Certain documents annexed to appellee’s motion would show a very plausible reason why the depositions were not offered in evidence, if we could consider the documents as evidence before us. The only method by which we could get such documents before-us as evidence would be to remand the case for a trial of this motion. Such a proceeding is unnecessary, because the fact that the depositions were not offered in evidence is a sufficient reason for our eliminating and excluding them from the record.

The transcript is so arranged and bound that it would be quite difficult to take the-depositions out without mutilating the record. It will suffice for the clerk of this court to mark the depositions referred to so that the court will not forget that they are not to be considered as evidence in the case.

It is ordered that the depositions of the six witnesses referred to herein be eliminated and excluded from the transcript of appeal and be not considered as evidence in. the case.