Succession of Serres

67 So. 356, 136 La. 531, 1914 La. LEXIS 1968

• Court: Supreme Court of Louisiana
• Decided: March 2, 1914
• Docket: No. 20436
• Status: Published

Opinions

On Motion to Dismiss Appeal.

BREAUX, C. J.

[1] On motion to dismiss appeal taken by Mrs. Catherine Dautch Bordes.

The gravamen of the motion is that defendant in motion does not have the least ground for an appeal; in the second place, that a party to an appeal, intending to use the record upon which a former appeal has been taken, should obtain the court’s permission on motion. Lastly, that the appeal bond is insufficient.

There was neglect and oversight in confecting the record of appeal, and, while there was cause of complaint at first on the part of the appellee, the documents not copied at first in the transcript have since been copied, and the copies now form part of the transcript. The copies were brought up to this court in due time. The transcript was filed in this court on the 28th day of January, 1914. The motion to dismiss the appeal because of want of copies of the proceedings was filed on the 30th day of the same month, and, on the day following, the clerk of court made his return and produced the following copies, which he annexed to and attached as part of the transcript.

(1) Motion of Mrs. Catherine Dautch Bordes and Pierre Bordes.

(2) Petition for registry and execution of will for confirmation of executor for letters, for an inventory and order of said petition.

(3) Exception to petition of Mrs. Catherine Dautch Bordes.

(4) Judgment sustaining exception.

(5) Reasons for judgment.

(6) Notarial will.

If copies are filed in due time, there is no good ground to have the appeal dismissed.

As these documents were filed within three days after the transcript had heen filed, from no point of view can the appeal be dismissed.

The original transcript, although defective, was amendable. Had it been defective so as not to be a record at all, a complete transcript might have been filed at the date that the copies before mentioned were filed.

The appeal was made returnable by the district trial judge on the 28th day of January, 1914. We have seen that the copies, a list of which is given above, were filed within the three days after the return day. That was all-sufficient.

The appellant, in order to meet objection urged by plaintiff in motion to dismiss the appeal, obtained a writ of certiorari to complete the record.

[2] The appellee objects and asks that no-effect be given to the writ issued to the clerk to complete the record because, as alleged by appellee, appellant did not set out the grounds which show that the irregularities in the transcript arose through no fault on his part.

The clerk had delivered a transcript which was duly filed with the certificate sufficiently full, as it referred to another case on appeal, owing to the fact, we infer, that appellant desired to use another transcript already filed.

It did not contain certain copies. Appellant, doubtless fearing that his appeal would be dismissed, filed the copies in due time, and, in addition, sued out a writ of certiorari. , Although he did not allege that it was not his fault that the transcript was not complete, there was nothing to give rise to the inference that he was at fault, as charged by the appellee.

The writ of certiorari was issued and has been executed; the papers are all before the court and were all timely filed. We therefore cannot dismiss the appeal.

Eor reasons stated, it is ordered, adjudged, and decreed that the motion to dismiss is overruled.