Gulfco Finance of Livingston, Inc. v. Lee

221 So. 2d 886, 1969 La. App. LEXIS 5009

• Court: Louisiana Court of Appeal
• Decided: April 14, 1969
• Docket: No. 7751
• Status: Published

Opinion

BAILES, Judge.

This matter is now before us on a motion to dismiss the appeal taken by defendant, Percy Lee, from judgment rendered against him and in favor of plaintiff. Plaintiff-appellee’s motion to dismiss recites:

“1.

“The record does not contain a transcript of testimony or statement of facts agreed to by the parties, or narrative of facts made by the trial court as required by Articles 2130 and 2131 of the Louisiana Code of Civil Procedure.

“2.

“The incorrectness of judgment appealed from depends upon a transcript of testimony or statement of facts agreed to by the parties or a written narrative of the facts of the trial court.”

It is incumbent upon an appellant to point out the error in the judgment appealed. Where a finding of fact is the basis for the alleged error the appellant must present a record through which the error can be shown. LSA-C.C.P. Articles 2130 and 2131 provide the methods for constructing this record. A party may either require the clerk to take the testimony down in writing or when this is not done join the other party in a written statement of facts. In cases of disagreement in the latter situation the trial court must provide a written narrative of facts.

While it is true that the record before us does not contain a transcript of the testimony of witnesses or a statement or narrative of the facts, it does contain a note of evidence in which certain stipulations entered into by the counsels for the parties have been transcribed. These stipulations include admissions and statements as to what the testimony of certain witnesses would have been had they been called to testify. We feel this is a sufficient transcript upon which to decide the appeal.

For this reason the motion to dismiss is denied.

Motion denied.