Smith v. Jones

8 So. 2d 352, 1942 La. App. LEXIS 37

• Court: Louisiana Court of Appeal
• Decided: June 1, 1942
• Docket: No. 2386.
• Status: Published

Opinion

On the face of the record in this case and from the extract from the minutes of the district court, it appears that the defendant was granted an appeal from a judgment on confirmation of default which revived a former judgment obtained against her by the plaintiff on December 11, 1931.

The original judgment which was revived is in, and forms part of the record, but we fail to find the judgment of revival which is the one from which the appeal was granted and taken, nor a copy thereof, in the transcript of appeal.

The case was fully argued and submitted as though the judgment had been actually rendered and signed and we presume that it was. In its absence from the record, however, the appeal cannot be entertained at this time.

We might mention also that the only issue presented, in our opinion, is a plea of prescription but apparently no such plea was filed. It is elementary that a plea of prescription cannot be supplied by the court.

As the appeal cannot be considered in the present form of the record, we have concluded to remand the case to the district court for the purpose of having the same completed. See Wren v. Brock, 198 La. 1026, 5 So.2d 323.

For the reason stated it is therefore ordered that this case be and the same is hereby remanded to the Twenty-seventh Judicial District Court for the Parish of St. Landry for the purpose of having such documents as are missing from the record therein supplied and otherwise completing the same.