Lewis v. New Orleans Savings Institution

33 La. Ann. 1463

• Court: Supreme Court of Louisiana
• Decided: December 15, 1881
• Docket: No. 7322
• Status: Published

Opinions

On the Motion to Dismiss.

The opinion of the Court was delivered by

Marr, J.

Plaintiff appealed from a judgment dismissing his suit qn the exception res adjudicata. Appellee, defendant in the District Cqurt, moves to dismiss, on the ground that the transcript is incomplete. “ That it does not contain all the testimony adduced upon the trial in the lower court; and that said incompleteness is attributable to the appellant, as appears by the annexed affidavits.”

The affidavits referred to are those of the clerk and deputy clerk of the District Court, of the same date as, and filed with the motion to dismiss. The deputy states, substantially, that the transcript was prepared under his supervision; and that the certificate, which is appended to it, showing that it is complete, is erroneous, and was made through inadvertence; that certain testimony which was offered by plaintiff, Harry Lewis, tutor, on the trial, does not appear in the transcript; that deponent requested appellant’s counsel to supply the same for the preparation of the transcript; that it was not supplied; and that the testimony not in the transcript has not been written out by the stenographer. ”

That on the day on which the transcript was filed in this Court, 13th January, 1879, as soon as deponent remembered that it was not complete, and that the certificate was incorrect and had been given in error, he unsuccessfully attempted to have it corrected before the transcript should be filed.

The affidavit of the clerk states that he signed the certificate as presented to him, supposing it to be correct, but that it is erroneous in that the transcript does not contain all the testimony adduced on the trial.

On the 27th January, three other affidavits were filed and submitted with the motion to dismiss: one by the same deputy clerk, one by the clerk, and the third by the stenographer of the' court. ’The deputy states that no testimony was taken on the trial; that all the testimony taken in a case in the same court, between the same parties, No. 8597 of the docket, was offered in evidence, but a part of it had not been written out in long hand, and is not yet written out nor on file; and that the record contains all the testimony written out in long hand and on file in that case. The affidavit of the clerk merely confirms and corroborates this statement.

The stenographer states that on the trial of the exception, the testimony taken in the case No. 8597, tried at the last term, between the same parties, was offered in evidence. That all this testimony was not written out in long hand, because the attorney for defendant, appellee in this case, “ directed me not to do so, and stated that the case would not be appealed, but would be settled. That in settling the costs of said case he did not pay for the writing out of said testimony in full, which, he said, would not be necessary.” That all the testimony has not been written out for that reason; and that all the testimony written out is in this record.

The certificate of the clerk is that the preceding 164 pages “ contain a full and complete transcript of all the proceedings had, testimony and evidence adduced, and all the documents filed upon the trial of the case,” etc.

The affidavits do not impeach nor contradict this certificate. On the contrary, they show that it is correct, and they also show that the alleged incompleteness is attributable to the appellee and not to the appellant.

The stenographer’s notes were not offered in evidence; they are not the testimony adduced on the trial. They are memoranda taken by him during the trial, ftom which he can afterwards write out and report intelligibly what the witness said on the trial; but they are wholly unintelligible to those who are not acquainted with his system.

There was no occasion for the stenographer to preserve the notes, after he had been informed by the defendant’s counsel that there would be no appeal, and that the case would be settled; and it is not shown that they were in existence when this case was tried. No witness was called; no testimony was taken, and the offer of all the testimony offered in the suit No. 8597 was, necessarily, restricted to that which had been written out and was on file, and could be submitted to, read and understood by the judge.

The motion to dismiss is, therefore, overruled at the cost of appellee.