State v. Mehojovich

43 So. 660, 118 La. 1013, 1907 La. LEXIS 840

• Court: Supreme Court of Louisiana
• Decided: February 4, 1907
• Docket: No. 16,442
• Status: Published

Opinions

PROVOSTY, J.

Four days after an appeal had been allowed in this case the trial court made an order instructing the clerk not to include in the transcript of appeal a certain part of defendant’s motion for a new trial. Defendant included in his motion for a new trial a synopsis of the evidence in the case, and it is this synopsis which the trial court thought ought not to appear in the transcript.

Subject to the rule of decorum and the rule of not trifling with the court — In other words, subject to the right of the trial judge to maintain good order in his court — the form and contents of a motion for new trial, or of any pleading, is a matter for the defendant to consider, and not the court. The idea that, apart from the right to maintain good order, the court may dictate what shall be, or what shall not be, included in the pleadings of defendant, is not to be entertained. Anything that may be contrary to this in the case of State ex reí. Haab v. Moise, 104 La. 63, 28 South. 902, is overruled.

A broad distinction is to be observed between the right of defendant to have evidence taken down or transcribed by the official stenographer of the court and his right to frame his pleadings as he thinks fit; in other words, to include in them whatever he deems necessary. In case the trial judge finds that in some respect they do not conform to the facts, he has the privilege of so stating in his per curiam; and the practice of this court is to accept the statement of the judge in case of conflict between it' and that of defendant.

The object of the present proceeding is to have brought up the part of the motion for new trial improperly omitted from the transcript.

Let the writ issue as prayed.