No. 2185 Precedential Processed

Soileau v. Tri-State Mutual Insurance Co.

Louisiana Court of Appeal, First Circuit · Filed September 6, 1967 · 206 So. 2d 716

Also decided on this docket: La. Ct. App. 4th Cir., May 2, 1966 186 So. 2d 174; La. Ct. App. 1st Cir., February 24, 1927 6 La. App. 278

Cited by

Carey Dorsey v. Protemp Staffing Solutions, Inc. La. Ct. App. 3d Cir. 2017
State in the Interest of J.A. La. Ct. App. 3d Cir. 2017
State ex rel. J.A. 224 So. 3d 411 La. Ct. App. 1st Cir. 2017
State of Louisiana in the Interest of B. R. C. La. Ct. App. 3d Cir. 2016
State ex rel. B.R.C. 192 So. 3d 897 La. Ct. App. 3d Cir. 2016
Haywood v. Salter 421 So. 2d 1190 La. Ct. App. 2d Cir. 1982
Ventre v. Pacific Indemnity Co. 391 So. 2d 95 La. Ct. App. 3d Cir. 1980
Gwatney v. Miller 365 So. 2d 1133 La. Ct. App. 1st Cir. 1978
In Re Salmon 318 So. 2d 897 La. Ct. App. 2d Cir. 1975
Rasberry v. English 255 So. 2d 433 La. Ct. App. 3d Cir. 1971
Soileau v. Tri-State Mutual Insurance 212 So. 2d 175 La. Ct. App. 1st Cir. 1968

Authorities cited

Identified automatically; this list may not be exhaustive.

Chivers v. Couch Motor Lines, Inc. 159 So. 2d 544

Opinion text

ON APPLICATION FOR REHEARING AS TO DISMISSAL OF THE APPEAL EN BANC CULPEPPER, Judge. We granted a rehearing to consider defendant appellant’s request that this case be remanded to the trial court for correction of the record, LSA-C.C.P. 2132. Defendant contends it can prove the certificate of the clerk of court (that notice of the signing of final judgment was mailed to counsel for defendant, LSA-C.C.P. Article 1913) is erroneous and that actually no such notice was mailed; hence, that the appeal was timely filed. As we stated in our original opinion, the clerk’s certificate is not conclusively presumed to be correct, and may be corrected on proper showing. Here the certificate is subject to question because it was not signed until 3y¿ months after the notice was allegedly mailed; and the notice was not sent by registered mail. The pendency of this appeal did not divest the trial court of jurisdiction to consider such a request for correction of the record. LSA-C.C.P. Article 2088; Chivers v. Couch Motor Lines, Inc., La.App., 159 So.2d 544 . Defendant appellant could have made his request directly to the trial court. However, in the interest of justice and because appeals are favored in the law, we have decided to remand this case to the trial court for the taking of evidence and a decision by the district judge on the factual issue of whether the clerk of court mailed the notice in compliance with LSA-C.C.P. Article 1913. After the trial court has ruled on defendant’s request to correct the certificate, the record must be returned to this court for a decision on plaintiff’s motion to dismiss the appeal. Remanded to the trial court on request that the record be corrected.