State ex rel. Magloire v. Barbin

25 La. Ann. 667

• Court: Supreme Court of Louisiana
• Decided: December 15, 1873
• Docket: No. 4778
• Status: Published

Opinion

Morgan, J.

This is a contest for office. There was judgment in favor of plaintiff, and the defendant appealed.

Appellee moves to dismiss the appeal upon several grounds:

First — The transcript or record was not filed within the time required 'by law, ten days. Section 13 of the act of 1866, page 154, provides that, “In all cases in which the right to office is involved, and an appeal is taken from the judgment of the district court, returnable before the Supreme Court holding its sessions in New Orleans, it shall be returnable in' ten days after the judgment of the lower court; and fhe Supreme Court, on motion of either party, shall proceed to try the ¡qame by preference.”

The judgment appealed from was signed on the eleventh of August, 1873. An appeal was allowed returnable to this court in ten days. 'The transcript was not filed until the third of September.

The transcript was filed in time. This Court was not in session when the appeal was made returnable. The delays only run when we are sitting. The authority relied on in 21 Annual, page 174, does not apply, the delays having expired while the Court was open.

Second — Because the transcript filed by appellant is not complete : it not containing all the evidence offered on the trial of the cause below.

In his answer, the defendant avers that he was duly elected sheriff -of the parish of Avoyelles, and a commission issued to him as such, without reciting by whom the commission issued. On the trial, the ■defendant offered the commission in evidence. We can not find it in the record.

In Harris v. Hays, 8 An. 433, it was held that, “ It is the duty of the appellant to see that the record contains all the evidence on which the case was tried. If he neglect so to do, the Court is without means •of reviewing the case, and the appeal will be dismissed.”

In Hall v. Beggs, 17 An. 130, it was held that, “ Where documents ■offered in evidence below are not to he found in the record, the appeal will be dismissed.” The same rule has been observed in 11 An. 72 ; 16 An. 40; 18 An. 232.

In accordance with these authorities, the appeal is dismissed.