In re Fazende

35 La. Ann. 1145

• Court: Supreme Court of Louisiana
• Decided: December 15, 1883
• Docket: No. 8857
• Status: Published

Opinions

On Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

The motion is based on the ground that there is “no note of evidence, no bill of exceptions and no statement of facts in the record,” and that appellant has not, within ten days after bringing up of the record, filed any written assignment of error.

' The certificate of the clerk attached to the record is full to the effect that the transcript contains “ a true, correct and complete transcript of all the proceedings had, documents filed, testimony and evidence "adduced upon the trial of the cause.”

We think that this destroys the motion.

We consider that Articles 896 and 897 of the Code of Practice are to be construed together, and that the conditions expressed in the beginning of Art. 896 in the words “if, therefore, the copy of the record brought up be not duly certified by the clerk of the lower court as containing all the testimony adduced,” extends to and covers all the provisions of both Articles. We hold the meaning and effect of the two Articles to be, that, in fits'absence of such certificate, the Supreme Court can judge of the cause only: 1, on a statement of facts; 2, on a bill of exception; 3, on a special verdict, or, in absence of all these; 4, on assignment of error on face of the record filed within the ten days.

If, on the contrary, the transcript presents such a certificate, then the provisions of those Articles have no application, and the Court will entertain the appeal. Reeves vs. Gordon, 5 La. 288; Erwin vs. Orillon, 6 La. 205; State vs. Giffen, 15 An. 420; Bossier vs. Carradine, 18 Id. 261; Cammack vs. Gordon, 20 Id. 213.

The motion to dismiss is, therefore, denied.