On Motion to Dismiss.
The opinion of the court was delivered by
Nicholls, O. J.
Plaintiff has moved to dismiss the appeal taken in this case on the ground:
1. That no bond has been filed as required by the order of appeal of 30th June, 1899, and as required by law. C. P., 574 et seq.
[316]*3162. Because the district judge had no jurisdiction or power in vacation and after the term at which the judgment was rendered by an ex parte motion out of court, and in vacation, to grant any order of appeal or fix the amount of the appeal bond as was attempted on 7th July, 1899, after the adjournment of the court for the term.
3. The amount of the bond, as filed, is insufficient to secure the payment of the costs as required by law. (C. P. 578.)
4. The appellant, Owen Riedy, has not filed in this court, on the return day, a transcript of all the proceedings, pleadings, minute entries, and of all the documents as required by law (O. P. 585-588), and Rule 1 of the Supreme Court; on the contrary, in violation of law, the so-called record filed here, from pages 178 to 327, instead of being copies, appear to be original documents, notarial acts, split up depositions within other States; the interrogatories, exhibits, separated from the answers and what purports to be original manuscript and printed books, which should have been copied.
Judgment in favor of the plaintiff, against defendant, was rendered by the District Court, Division “A,” on the 26th of June, 1899, and signed on the 30th of the same month.
On this last mentioned day, on motion of attorneys of defendant, it was ordered by the court that a devolutive'appeal be granted from said judgment, returnable to the Supreme Court of Louisiana on the 1st Monday in November, 1899, on mover furnishing bond for costs in the sum of one thousand dollars. On the 7th of July, 1899, there was filed in court and entered on the minutes of Division “A” of the court, and filed as a motion, an application reading as follows:
“Immanuel Presbyterian Church vs. Owen Riedy, No. 53,653, Division “A.”
“To the Civil District Court for the Parish of Orleans-.
“On motion of E. T. Merrick and Omer Villere, of counsel for Owen Riedy, and on suggesting to the court that the bond for a suspensive appeal herein fixed at one thousand dollars is too high, and that a bond of five hundred dollars will more than cover the costs of appeal. It is ordered that the bond for a devolutive appeal herein be fixed at five hundred dollars.
(Signed) “T. C. W. Ellis, Judge.
“New Orleans, La., July 7th, 1899.”
On July 24, 1899, a bond of appeal was filed in'the Civil Court, [317] signed and dated on the 30th of June, for the sum of five hundred dollars. The character of the appeal taken is not mentioned. The bond in its condition follows the provisions of Article 579.
The transcript was lodged in the Supreme Court on Wednesday, November 8th, 1899.
The only order of appeal which we find in the record is that copied above, which is for a devolutive appeal on a bond of five hundred dollars. The recital in the paper filed on the 7th of July, 1899, that the “bond for a suspensive appeal herein, fixed at one thousand dollars’’ had no basis to rest on, and was evidently a clerical error and should have read “devolutivo appeal.”
In his certificate attached to the record, the clerk certifies that the “foregoing three hundred and thirty-two pages do contain a true, and correct transcript of all the proceedings had, documents copied in compliance with instructions of counsel for appellant, and order of court copied on folio 332 (except reasons for judgment which, after careful and diligent search, could not be found), and evidence adduced upon the trial of the cause wherein Immanuel Presbyterian Church is plaintiff, and Owen Eiedy is defendant, instituted in this court and now on the records thereof under the numer 52,653 of this Honorable Court, Division ‘A.’ T. C. W. Ellis, Judge.”
The order of court referred to in this certificate was granted in Division “A” of the Civil District Court on the 7th of August, 1899, by John St. Paul, Judge of Division “0,” acting for T. C. W. Ellis, Judge of Division “A,” absent from the State, on motion of E. T. Merrick and Omer Villere, attorneys for Owen Eiedy, upon their suggesting on his behalf that all his property had been seized in the suit; that he was left destitute and could not pay for a large transcript.
The order read as follows:
“It is ordered that the following documents be sent to the Supreme Court in the original as part of the transcript of appeal.
“1. The minute books and the books containing the translation of the minutes.
“2. The account books herein filed.
“3. The two printed books herein filed.
“4. All the copies of notarial acts herein filed.
“5. All type-written copies annexed to depositions.
“6. All type-written copies of documents.
[318] “7. All the original receipts, letters and notes showing original signatures of the trustees of the plaintiff church.”
We do not find that this order was granted with the consent of the plaintiff or contradictorily with him.
Opinion.
1. The order of appeal of 30th of June, 1899, required for an appeal a bond for $1000.00. The amount was subsequently reduced by the court to $500 (five hundred dollars).
A bond was furnished for that amount.
2. We do not find any order of appeal to have been granted by the district judge in vacation and after the term at which the judgment was rendered. The order was made by motion in open court during the term.
There was simply, after the adjournment of court, a modification of the order in so far as related to the amount of bond to be furnished.
This modification was not a new order of appeal, nor did it destroy the original order. The judge had the authority during vacation, and before the appeal was completed, to reduce the amount for the bond if he thought it too large. Gibson vs. Selby, 2 Ann. 629; Holbrook vs. Holbrook, 32 Ann. 13.
Appellant could furnish the bond for a devolutive appeal at any time within the year during which the devolutive appeal could be taken (McWaters vs. Smith, 25 Ann. 515), even if the motion for an appeal was made as soon as the judgment was rendered.
3. The fact that the judge of the District Court may have fixed too low the amount required for an appeal furnishes no ground for a dismissal of the appeal.
The remedy was to have had the amount increased in the lower court by proper proceedings.
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On Motion to Dismiss.
The opinion of the court was delivered by
Nicholls, O. J.
Plaintiff has moved to dismiss the appeal taken in this case on the ground:
1. That no bond has been filed as required by the order of appeal of 30th June, 1899, and as required by law. C. P., 574 et seq.
[316]*3162. Because the district judge had no jurisdiction or power in vacation and after the term at which the judgment was rendered by an ex parte motion out of court, and in vacation, to grant any order of appeal or fix the amount of the appeal bond as was attempted on 7th July, 1899, after the adjournment of the court for the term.
3. The amount of the bond, as filed, is insufficient to secure the payment of the costs as required by law. (C. P. 578.)
4. The appellant, Owen Riedy, has not filed in this court, on the return day, a transcript of all the proceedings, pleadings, minute entries, and of all the documents as required by law (O. P. 585-588), and Rule 1 of the Supreme Court; on the contrary, in violation of law, the so-called record filed here, from pages 178 to 327, instead of being copies, appear to be original documents, notarial acts, split up depositions within other States; the interrogatories, exhibits, separated from the answers and what purports to be original manuscript and printed books, which should have been copied.
Judgment in favor of the plaintiff, against defendant, was rendered by the District Court, Division “A,” on the 26th of June, 1899, and signed on the 30th of the same month.
On this last mentioned day, on motion of attorneys of defendant, it was ordered by the court that a devolutive'appeal be granted from said judgment, returnable to the Supreme Court of Louisiana on the 1st Monday in November, 1899, on mover furnishing bond for costs in the sum of one thousand dollars. On the 7th of July, 1899, there was filed in court and entered on the minutes of Division “A” of the court, and filed as a motion, an application reading as follows:
“Immanuel Presbyterian Church vs. Owen Riedy, No. 53,653, Division “A.”
“To the Civil District Court for the Parish of Orleans-.
“On motion of E. T. Merrick and Omer Villere, of counsel for Owen Riedy, and on suggesting to the court that the bond for a suspensive appeal herein fixed at one thousand dollars is too high, and that a bond of five hundred dollars will more than cover the costs of appeal. It is ordered that the bond for a devolutive appeal herein be fixed at five hundred dollars.
(Signed) “T. C. W. Ellis, Judge.
“New Orleans, La., July 7th, 1899.”
On July 24, 1899, a bond of appeal was filed in'the Civil Court, [317] signed and dated on the 30th of June, for the sum of five hundred dollars. The character of the appeal taken is not mentioned. The bond in its condition follows the provisions of Article 579.
The transcript was lodged in the Supreme Court on Wednesday, November 8th, 1899.
The only order of appeal which we find in the record is that copied above, which is for a devolutive appeal on a bond of five hundred dollars. The recital in the paper filed on the 7th of July, 1899, that the “bond for a suspensive appeal herein, fixed at one thousand dollars’’ had no basis to rest on, and was evidently a clerical error and should have read “devolutivo appeal.”
In his certificate attached to the record, the clerk certifies that the “foregoing three hundred and thirty-two pages do contain a true, and correct transcript of all the proceedings had, documents copied in compliance with instructions of counsel for appellant, and order of court copied on folio 332 (except reasons for judgment which, after careful and diligent search, could not be found), and evidence adduced upon the trial of the cause wherein Immanuel Presbyterian Church is plaintiff, and Owen Eiedy is defendant, instituted in this court and now on the records thereof under the numer 52,653 of this Honorable Court, Division ‘A.’ T. C. W. Ellis, Judge.”
The order of court referred to in this certificate was granted in Division “A” of the Civil District Court on the 7th of August, 1899, by John St. Paul, Judge of Division “0,” acting for T. C. W. Ellis, Judge of Division “A,” absent from the State, on motion of E. T. Merrick and Omer Villere, attorneys for Owen Eiedy, upon their suggesting on his behalf that all his property had been seized in the suit; that he was left destitute and could not pay for a large transcript.
The order read as follows:
“It is ordered that the following documents be sent to the Supreme Court in the original as part of the transcript of appeal.
“1. The minute books and the books containing the translation of the minutes.
“2. The account books herein filed.
“3. The two printed books herein filed.
“4. All the copies of notarial acts herein filed.
“5. All type-written copies annexed to depositions.
“6. All type-written copies of documents.
[318] “7. All the original receipts, letters and notes showing original signatures of the trustees of the plaintiff church.”
We do not find that this order was granted with the consent of the plaintiff or contradictorily with him.
Opinion.
1. The order of appeal of 30th of June, 1899, required for an appeal a bond for $1000.00. The amount was subsequently reduced by the court to $500 (five hundred dollars).
A bond was furnished for that amount.
2. We do not find any order of appeal to have been granted by the district judge in vacation and after the term at which the judgment was rendered. The order was made by motion in open court during the term.
There was simply, after the adjournment of court, a modification of the order in so far as related to the amount of bond to be furnished.
This modification was not a new order of appeal, nor did it destroy the original order. The judge had the authority during vacation, and before the appeal was completed, to reduce the amount for the bond if he thought it too large. Gibson vs. Selby, 2 Ann. 629; Holbrook vs. Holbrook, 32 Ann. 13.
Appellant could furnish the bond for a devolutive appeal at any time within the year during which the devolutive appeal could be taken (McWaters vs. Smith, 25 Ann. 515), even if the motion for an appeal was made as soon as the judgment was rendered.
3. The fact that the judge of the District Court may have fixed too low the amount required for an appeal furnishes no ground for a dismissal of the appeal.
The remedy was to have had the amount increased in the lower court by proper proceedings.
4. We do not think we should dismiss this appeal upon a motion in limine on account of the alleged defective condition of the transcript. It is possible that in its present condition it may properly contain enough data, properly certified, to enable the court to pass upon issues which may have been raised in the trial court, which are sufficient in their character to work a final reversal of the judgment or a remanding of the case.
We cannot anticipate what the issues involved are. Saw Mill and [319] Manufacturing Co., in Liquidation, 48 Ann. 715; Succession of Duffy, 50 Ann. 714; Brown vs. Land Co., 49 Ann. 1786; Heirs of Marmion vs. McPeake, 51 Ann. 633.
If, upon an examination of the record, we find it insufficient for the purpose of rendering a decree upon it, we will dismiss the appeal.
The fact that the district clerk, in making out a transcript, may have inserted therein matters not proper to be there, or should, without authority, have pasted originals to the record, should not cause the rejection of the appeal, but the ignoring and the disregarding of such documents or papers. Succession of Fortier, 51 Ann.
We think it proper to say that the practice of omitting from the transcript documents filed in evidence and sending them up in the original is without authority to rest upon.
As far back as Hayes vs. Clarke, 12 Ann. 666, this court said: “Under the peculiar circumstances of this case, we have looked into the original records sent up and completing the record of the ease. But as +he original records are liable to be lost, when taken from the proper offices, we take occasion to say that hereafter the original papers of’ other offices will not be received to complete a record pending in this court.”
It is quite probable that the originals sent up in that case were of papers which had been also filed in evidence and copied in the record and simply additionally brought up for inspection.
Eor a much stronger reason should originals of papers, not to be found in the record, be brought up for our consideration.
The law requires documents and evidence to be filed and on appeal to be transcribed and placed before us under the clerk’s certificate. C. P. 585, 586.
We have, sometimes, upon the express written consent of all the parties to the litigation, to avoid expense, permitted them on specifications of what papers are covered by such consent, acted upon records and papers irregularly before the court, but the district judge is without authority, by an ex parie order, to vary the law touching what should be inserted in or sent up on appeal dehors the transcript.
Papers sent up not covered by the clerk’s certificate reach us with no official proof either of authenticity or of having been received in evidence in the 'trial court, and outside of any question of authority innumerable disputes between counsel would be the inevitable result of sanctioning such a departure from correct practice. Counsel of ap[320] pellee strenuously objects to our taking cognizance of anything outside of the record and of the clerk’s regular legal certificate, and his objection is well grounded. Woodlief vs. Logan, 51 Ann. 1934.
The motion to dismiss the appeal in limine is denied, wiihout prejudice.
On Renewal of Plaintiff’s and Appellee’s Motion to Dismiss the Defendant’s Appeal.
Watkins, J.
The motion to dismiss the appeal was filed, assigned for trial separately from the merits, and submitted; and same was examined and decided adversely, with the intimation that appellee’s right to renew its contention on the trial of the merits would be entertained — “the motion to dismiss the appeal in limine (being) denied without prejudice.”
There were, originally, two grounds of dismissal urged, which were technical, and related to the sufficiency of the bond of appeal, and the manner in which the transcript was prepared.
But,' in our view, these technical objections have disappeared, and the only consideration that may now be given them, must be restricted to their bearing on the merits which have been argued and submitted, and are now under consideration. Succession of Fortier, 51 Ann. 1563.
In that case we announced our opinion to be, that this court “is reluctant to dispose of the rights of parties on questions of law, raised on motion to dismiss the appeal.”
The argument which is now pressed upon our attention is (1) that certain papers and documents introduced in evidence in the court below, were annexed to the transcript and brought up in the original, and not copied into the-transcript conformably to law; (2) that certain of the aforesaid documents and records were neither copied into the transcript, nor brought up in the original.
The record' shows, and the fact is admitted by counsel for appellee to be, that the originals specified, were brought up under and by the express authorization of the judge a quo, and same were particularly enumerated in his order; consequently, that is not a fault — if fault it be — which is attributable to the appellant.
The record before us affords the information that this is, apparently, a civil controversy between a religious corjjoration and its former pastor, with reference to an alleged misapplication of a certain sup[321] posed trust fund which is in the custody of its directors, to the payment of the latter’s salary through a series of years — the plaintff claiming a restitution or reimbursement of same, and the defendant averring receipt thereof upon proper authorization of resolutions of the directors.
We gather from the printed briefs and oral argument, that one of the important and possibly crucial questions in the case, is the authenticity of the acts of the board of directors and the genuineness of the signatures of the officers of the church corporation, and the verity of handwriting, etc.; and that the defendant pastor had an interest in the exhibition of the originals to this court; and the interest of the church appears to be just the other way.
In our former opinion, we said:
“We do not think we should dismiss this appeal upon motion in limine on account of the alleged defective condition of the transcript. It is possible that in its present condition, it may properly contain enough ciaba, correctly certified, to enable the court to pass upon issues which may have been raised in the trial court, which are sufficient in their character to work a final reversal of the judgment, or a remanding of the case. We cannot anticipate what the issues involved are”— citing authorities.
“If upon an examination of the record, we find it insufficient for the purpose of rendering a decree upon it, we will dismiss the appeal.”
We have not yet fully examined the record, which is quite voluminous, but enough appears from an examination already made, taken with the arguments and briefs, to justify the conclusion that the case can be examined in its present condition, without prejudice to the rights of the appellee.
Viewed from this standpoint, we are of opinion that the purposes of justice would be best subserved by the maintenance of the appeal; consequently, the appellee’s motion to dismiss is denied.