Thayer v. Littlefield

5 Rob. 152

• Court: Supreme Court of Louisiana
• Decided: June 15, 1843
• Status: Published

Opinion

Bullard J.

The appellee moves to dismiss this appeal, on the ground that the record contains neither all the evidence adduced on the trial below, nor a statement of facts, nor any bill of exceptions, or assignment of errors.

The appellant admits that the record is imperfect, but contends, that after answer to the appeal oh the merits* it is too late to make the objection, and that he is entitled to a certiorari to supply the defect.

The first objection has no weight; because, if both parties were to agree to it, this court would not try any case on its merits, without having before it all the evidence on which it was tried in the first instance, or a statement of facts agreed hpoh. Under ordinary circumstances, the certiorari would be allowed under art. 898, of the Code of Practice. But it is manifest* in this case, that the certiorari would be useless, inasmuch as the clerk certifies that document No. 1, is not to be found among the papers, nor the record of N. Goodale & Wife v. J. Littlefield Co., offered in evidence with leave to either party to yse what parts of it they chose both below and on the appeal, and nothing shows that those documents have since been found, so as to enable the clerk to furnish a copy, and thus complete the record. The case in 4 La. 470, referred to by the counsel for the appellants, supports this view of the case.

Appeal dismissed.