Castell Land & Harbor Co. v. Bushong

137 So. 71, 173 La. 387, 1931 La. LEXIS 1875

• Court: Supreme Court of Louisiana
• Decided: March 2, 1931
• Docket: No. 31033.
• Status: Published

Opinion

BRUNOT, J.

The appeal in this case is from a judgment maintaining exceptions of no right or cause of action and dismissing the plaintiff’s suit.

The motion to dismiss the appeal is based-upon two grounds, viz.: That pending the appeal the plaintiffs were adjudged bankrupts, and therefore they have no standing in court as appellants or otherwise; and that-the record is not sufficiently complete to enable this court to adjudge the case on its merits.

Appellants contend that their status can only be determined by an inquiry into the. merits of the case, and that the record has been completed by the filing of a supplemental transcript.

The record shows that the plaintiffs’ trus-’ tee in bankruptcy joined the plaintiffs in the appeal, and made himself a coappellant from the judgment dismissing the plaintiffs’ suit.

Upon the authorities cited in support of' the first ground of the motion to dismiss, it' seems certain that the appeal cannot be dismissed as to plaintiffs’ trustee, and we are extremely doubtful as to whether the present status of plaintiffs can be determined, with satisfactory certainty, without some-inquiry into the merits.

It appears that a part of the record consisted of the record and judgment in another suit. This record and judgment was inadvertently omitted by the clerk who prepared' the original transcript in the case. When the clerk’s attention was called to the matter,' the omitted record and judgment were' promptly transcribed and filed in this court, and, considering the clerk’s certificate ap-' pended to the supplement to the original’ transcript, we must'assume that appellants-are not chargeable with laches in the prepara--' tion of the original transcript.

For these reasons the motion to dismiss the appeal is overruled.