Martinez v. New Orleans City Railroad

Ludeling, C. J. On the application of the defendant, and upon proof that the transcript of appeal did not contain any portion of the testimony of the witnesses who were sworn and examined and who gave their testimony in the case upon the trial thereof, and that the same was reduced to writing, a mandate of this court was issued, addressed to the clerk of the Sixth District Court, directing him to correct the transcript or show cause why he could not do so. In obedience to this writ, the clerk of the Sixth District Court has certified that the testimony, taken and reduced to writing in the case, can not be found, although strict search has been made, and that the evidence was not in the clerk’s office at the time when the transcript of appeal was made. It is impossible to examine the case, on its merits, without having before us the evidence upon which it was decided. The fault for this condition of the case does not appear to be attributable to the appellant, and justice demands that the case should be remanded for a new trial. It is therefore ordered that this case be remanded to the court a qiia, to be tried de novo.