7288 Precedential Processed

Webre v. Heard

Louisiana Court of Appeal, First Circuit · Filed March 4, 1968 · 207 So. 2d 880

Also decided on this docket: La. Ct. App. 1st Cir., April 1, 1918 1 Pelt. 104; La., July 1, 1880 1 Mann. Unrep. Cas. 330

Cited by

Jason L. Mouret v. Belmont Homes, Inc. La. Ct. App. 3d Cir. 2012
Mouret v. Belmont Homes, Inc. 91 So. 3d 592 La. Ct. App. 1st Cir. 2012
Plummer v. Brown 934 So. 2d 175 La. Ct. App. 1st Cir. 2006
Floor-N-Wall Distributors, Inc. v. E. H. Hirts 407 So. 2d 501 La. Ct. App. 1st Cir. 1981
DeLaneuville v. Duplessis 385 So. 2d 385 La. Ct. App. 1st Cir. 1980
Succession of Walker 288 So. 2d 328 La. 1974
American Supply Co. of Morgan City, Inc. v. Petrolane Offshore Construction Services, Inc. 289 So. 2d 356 La. Ct. App. 1st Cir. 1973
Pearson v. Hartford Accident & Indemnity Company 281 So. 2d 724 La. 1973
Succession of Walker 276 So. 2d 372 La. Ct. App. 2d Cir. 1973
Pearson v. Hartford Accident & Indemnity Co. 263 So. 2d 430 La. Ct. App. 1st Cir. 1972
Aube v. American Insurance Co. 254 So. 2d 654 La. Ct. App. 4th Cir. 1971

Authorities cited

Identified automatically; this list may not be exhaustive.

Williamson v. Enterprise Brick Co. 190 La. 415

Opinion text

207 So.2d 880 (1968) Lynn J. WEBRE, d/b/a Webre Steel Company v. Meredith G. HEARD. No. 7288. Court of Appeal of Louisiana, First Circuit. March 4, 1968. *881 Atkins, Copenhaver & Russell, Baton Rouge, for appellant. Warren L. Mengis, of Mengis & Durant, Baton Rouge, for appellee. Before LANDRY, REID and BAILES, JJ. LANDRY, Judge. Defendant, Meredith G. Heard, takes this appeal from the judgment of the trial court in favor of plaintiff Lynn J. Webre, d/b/a Webre Steel Company (Webre), in the sum of $177.19, the cost of certain goods sold defendant on open account. Upon review of the record before us, we find the instant appeal must be dismissed inasmuch as the record contains no transcript of testimony, no agreed statement of facts entered into between opposing counsel and no narrative of facts by the trial court. Appellant's brief in behalf of this appeal consists solely of a plea for a remand to the trial court for the purpose of incorporating into the record the notes of evidence allegedly taken by the trial court in lieu of a transcript of testimony pursuant to a reputed stipulation between counsel made to that effect in open court. No such stipulation appears of record herein, either in the minutes of the court or otherwise. With the record in this state, we herein exercised our supervisory jurisdiction in the form of an alternative writ of mandamus ordering the lower court to either file the note of evidence purportedly made in lieu of a transcript, or show cause to the contrary. In compliance therewith, the trial court has responded to the effect that no such stipulation was made during the course of the trial below; that the lower court was not requested and did not agree to supply a factual narration in lieu of transcribed testimony and that no such agreement or stipulation appears in the court's minutes. In further response to our writ, the trial court gratuitously furnished a narration of facts as he recalled it from memory. Under the circumstances, however, we cannot consider this narration in lieu of a transcript of testimony. It is settled jurisprudence that where there is no written transcript of testimony, the burden rests on appellant to comply with the provisions of LSA-C.C.P. Articles 2130 and 2131 and furnish, as part of the record on appeal, either an agreed stipulation of fact entered into between counsel, or, in the event of the failure of counsel to agree, *882 a narrative of facts by the trial court. Williamson v. Enterprise Brick Co., 190 La. 415 , 182 So. 556 . Since the answer of the trial court to our alternative writ shows beyond doubt that appellant has failed to comply with the applicable articles, there is nothing to consider on this appeal which must therefore be dismissed. It is not the duty of the trial court to furnish a narrative of facts until or unless formally requested to do so by appellant who must first demonstrate the inability of counsel to agree upon such a statement as required by LSA-C.C.P. Articles 2130 and 2131. Consequently, the alternative writ of mandamus herein issued to the Honorable Lewis S. Doherty, Jr., Judge, Nineteenth Judicial District Court, East Baton Rouge Parish, shall be and the same is hereby annulled, vacated, recalled and set aside and this appeal dismissed at the cost of appellant, Meredith G. Heard. Appeal dismissed.