Campbell v. Marshall
Campbell v. Marshall, 28 So. 2d 296 (La. Ct. App. 1st Cir. 1946).
Cited by
- American Supply Co. of Morgan City, Inc. v. Petrolane Offshore Construction Services, Inc. 289 So. 2d 356 La. Ct. App. 1st Cir. 1973
- Watts v. Smith 101 So. 2d 464 La. Ct. App. 1st Cir. 1958
- American Adjustment Co. v. Batiste 79 So. 2d 337 La. Ct. App. 1st Cir. 1955
- Hotel Donaldson Co. v. Anderson Hotels of Louisiana, Inc. 75 So. 2d 884 La. Ct. App. 1st Cir. 1954
- St. Romain v. Bordelon 77 So. 2d 420 La. Ct. App. 1st Cir. 1953
- Tenner v. Griffin 53 So. 2d 806 La. Ct. App. 1st Cir. 1951
- Hydrotex Industries, Inc. v. Cartwright 45 So. 2d 93 La. Ct. App. 1st Cir. 1950
Authorities cited
Identified automatically; this list may not be exhaustive.
- Chelette v. Roberts 185 So. 678
- Williamson v. Enterprise Brick Co. 190 La. 415
- Security Mut. Casualty Co. v. Smith 185 So. 679
Opinion text
From a judgment in favor of defendant dissolving a writ of sequestration sued out by plaintiff and awarding $250 damages as attorney's fees, plaintiff prosecutes this appeal. A motion to dismiss the appeal has been filed by defendant, which motion sets forth six reasons in support thereof. The reasons advanced by defendant in support of his motion to dismiss are all comprehended by the contention that the record does not contain any transcript of the testimony taken on trial, nor any statement of facts either by joint agreement of counsel or by the judge of the trial court. An examination of the record discloses the unquestionable correctness of the facts upon which the motion to dismiss the appeal is based. There is no transcript of testimony; nor is there any agreed statement of facts; nor is there any statement by the Court; nor, indeed, is there any evidence of any attempt to procure any one of these evidences of testimony or any explanation as to why any such form is omitted from the record. Under the circumstances we are of the opinion that the disposition of this motion may be determined under the pronouncements of this Court in a case in which the facts were analogous, namely, Chelette v. Roberts, et al., La. App., 185 So. 678 . In the above cited case Judge Taliaferro, as the organ of this Court, referred to the holding in Williamson v. Enterprise Brick Co., 190 La. 415 , 182 So. 556 , quoting the following extract therefrom: "The appellate court must dismiss appeal, where record filed therein contains no transcript of testimony or statement of facts, agreed to by parties or furnished by trial judge, and correctness of judgment appealed from depends on verbal testimony heard. Code Prac., arts. 601-603." [ 185 So. 679 .] It is contended by learned counsel for plaintiff that the appeal in the instant case should not be dismissed but rather that the case should be remanded to the lower court for further proceedings in the event the record before us on appeal should be found so incomplete as to fail to provide sufficient information upon which to base an opinion as to the merits of the appeal. We cannot subscribe to this contention. The point involved herein does not concern the incompleteness of the record, but rather a failure to conform to the provisions of law prescribing the several modes by *Page 297 which testimony of witnesses may be made a part of the record on appeal. To remand this case would be equivalent to forcing the trial court to hear again the same matter which it has already determined, to the prejudice of the prevailing party. For the reasons set forth, we find the motion to dismiss the appeal to be well grounded, and, accordingly, it is ordered that the appeal be dismissed at plaintiff's cost.