Générès v. Harris

16 La. Ann. 183

• Court: Supreme Court of Louisiana
• Decided: March 15, 1861
• Status: Published

Opinion

Duffel, J.

The appellant having, by inspection, found a diminution in the transcript of appeal, which, from the certificate of the clerk, appeared complete, applied, in due form, for a writ of certiorari in February 1860.

The counsels of the appellees thereupon admitted “ that when the cause was called for trial in the court below, the defendant and appellant made a motion of continuance, supported by affidavit, and the said motion having been overruled by the court, the defendant took a bill of exception, and that the said motion, affidavit and bill of exception, are not included in the transcript on file, but were lost or mislaid, as stated by the clerk of the court below, in his certificate of the 9th February 1860.”

The clerk of the District Court certified again, on the 2nd of February 1861, that he has been unable, notwithstanding diligent searches, to find the missing documents.

Upon the above facts, and the parties not having agreed to a statement of facts, we cannot say that the appellant was guilty of any laches. The cause must'therefore be remanded for a new trial. Evin v. Murphy & al., 11 R. 477; Lyon v. Andrews. 5 An. 602; Barrow v. Landry 12 An. 83.

It is therefore ordered and decreed, that the judgment of the lower court be reversed, that the cause be remanded for a new trial, and that the appellees pay the costs of the appeal.