State ex rel. Wogan v. Mechanics' & Traders' Bank

35 La. Ann. 562

• Court: Supreme Court of Louisiana
• Decided: April 15, 1883
• Docket: No. 7886
• Status: Published

Opinions

The opinion of the Court was delivered by

Bkrmüdicz, C. J.

This is an appeal by persons claiming to be third parties and to have an appealable interest from a judgment forfeiting the charter of a Free Bank and appointing Commissioners to liquidate its affairs.

The transcript contains no note of evidence, no statement of facts,no bill of exceptions and no assignment of errors. ;

The certificate of the clerk of the District Court is to the effect “ that the foregoing 139 pages do contain a true and correct transcript, as per agreement on file, of all the proceedings had, documents filed and evidence adduced on the trial of the cause wherein the State ex rel. Wogan is plaintiff and the Mechanics’ & Traders’ Bank is defendant, instituted in the said Court and now of record thereof under the No. 9744.”

The case presents substantially the same features as that of Morton vs. Owners of Steamboat Chalmette, 15 An. 708.

As was said in that case, we say in this a “ It is obvious that this Court is not in possession of all the evidence on which the case was tried in the lower court. The certificate of the clerk shows negligence-on the appellant in not causing the testimony of the witnesses to be reduced to writing and in not procuring a statement of facts. We must dismiss this appeal ex officio.”

In that case the appellant was the defendant. In the present one the appellants are third parties.

Under the agreement mentioned in the clerk’s certificate, either party could supplement the deficient transcript at any time before the argument of the case in this Court, by filing original papers or certified copies. Nothing of the kind was done.

They could not have caused the testimony to be taken down, or a' note of evidence made, but they might have procured a statement of-facts. Third parties appealing iiave no greater rights than the parties to the suit. They are all equally bound to cause to be prepared and to submit such a transcript as will enable the appellate court to pass1 upon the merits of the case as the lower court itself did. Where they fail to do so, they are exposed to like risks and perils.

The appellants should at least have filed here an assignment of errors. In the absence of such, the law says that “ the appeal shall he rejected.” C. P. 897. - .....

Appeals in oases similar to tlie present one have invariably been dismissed on motion; but that proceeding is unnecessary, although useful. The Court can proprio motu dismiss such appeals. 15 An. 708; 21 An. 458; 20 An. 141; 23 An. 746; 29 An. 71; 24 An. 20; 30 An. 630; H. D. 76; L. D. 47.

Appeal dismissed at costs of appellants.