Succession of White

61 So. 860, 132 La. 890, 1911 La. LEXIS 449

• Court: Supreme Court of Louisiana
• Decided: May 22, 1911
• Docket: Nos. 18,813, 19,777
• Status: Published

Opinions

On Appellee’s Motion to Dismiss.

BREAUX, C. J.

The grounds of this motion are: The record is incomplete, and that for that reason the appeal should be dismissed.

The certificate of the clerk of the district court shows that the transcript is not complete.

We are informed by the mover’s state- ■ ment, forming part of his motion, that 21 documents were offered in evidence by appellants on the trial of the cause, and that these documents, together with others, some six in number, offered in evidence by appellee, were to be sent up as originals forming part of the transcript.

The statement is that three letters written by the late Mrs. White are missing; that they are indispensable for comparison with her latest handwriting, and that they are besides impeaching evidence, as they impeach the testimony of the chief beneficiary of the will; that these papers and letters were considered by the judge a quo in pronouncing judgment; that they have disappeared since the date of the judgment in the district court.

The clerk of court in certifying • to the date of the transcript declared that, in accordance with the instructions of counsel of the respective parties, given on March 11th of the present year, he copied all the papers and documents necessary to complete the transcript except the lost documents; that he was unable to find these lost documents after a most careful and diligent search.

The appellee asks for a noneonditional dismissal of the appeal.

On Appellants’ Motion to Remand and Consolidate.

[1] They represent that, if in the present state of the record of appeal the cause be taken up for hearing and decision, it will not be possible for the court to arrive at a satisfactory conclusion. They also aver that the missing documents are very much needed. They further aver that “on the thirtieth day of March, 1911, a second and a later will of the deceased, Mrs. White, was found”; that it is filed by proponent in the district court for probate; that in this last will the testatrix refers to the first will; and that in consequence it proves, as movers state, the genuineness of the first will.

They further' aver that justice demands the remanding of the case to be cumulated and merged with the proceedings to probate the will of more recent date.

Both motions are premature.

They are referred to the merits.

After the case will have been submitted for decision, and the evidence will have been considered, it will be in order to determine whether the appeal should be dismissed, or remanded, or the case decided as now made up.

It may be that, after argument and consideration of the evidence, it will be possible to decide the issues without applying the contents of the missing papers.

We are informed that the clerk has not given up all hope of finding the missing papers ; if he finds them, they will be produced.

There is no suggestion before us regarding the negligence or fault of any one in matter of the papers before referred to.

Altogether, we are of opinion that it is better not to act in the premises at present.

For reasons stated, the motion will be hereafter considered and disposed of as required.

SOMMER.VILLE, J., takes no part herein.

On Continuance of No. 18,813.

PER CURIAM. Considering that this is a contest over the genuineness of a purported olographic will of the deceased, and that a later purported olographic will of the deceased has been presented for probate in the court below, and further considering that 28 original documents in the handwriting of the deceased are missing from the record, it is ordered that the submission of this cause be set aside, and that it be continued until the further orders of this court.

MONROE, J., dissents.