Richmond v. Newson , 209 La. 922 ( 1946 )

Defendant and appellee herein, Robert J. Newson, has moved to dismiss this appeal, perfected originally to the Court of Appeal of the Second Circuit and by it transferred here (23 So. 2d 633). In support of the motion he alleges that the records in two prior suits between the parties, which served as a basis for the district court's decision sustaining appellee's plea of res judicata and exception of no cause of action and dismissing appellant's (plaintiff's) suit, have not been incorporated in the transcript of appeal.

Act No. 234 of 1932 provides: "Be it enacted by the Legislature of Louisiana, That whenever an appellant files an incomplete transcript, or files the transcript or a further application for an extension, within three judicial days after the return day, or omits to file as part of the record any transcript exhibits offered in evidence, or whenever because of any error on the part of the Clerk of Court or of the trial Judge, or for any purely technical reason, a motion to dismiss his appeal is filed either by an appellee, third person or intervenor, charging and setting forth as grounds for dismissal any of the above reasons, no appellate court shall maintain said motion to dismiss, or dismiss the appeal, unless it first allow to the appellant at least two additional days, exclusive of Sundays and holidays, to cure and correct any and all the informalities and irregularities alleged and complained of in the motion to dismiss; and such appellant may, before the date on which the motion to dismiss is fixed for trial, cure and correct any objection, irregularity or informality charged or alleged to exist in the motion to dismiss, and if it appears to the appellate court that he has done so, the motion to dismiss shall be denied."

The transcript of appeal when and as lodged in this court contained parts of the records in the two prior suits mentioned by appellee. After the tendering of the motion to dismiss appellant filed here certified copies of other requisite documents. As supplemented the transcript, insofar as our examination discloses, furnishes all of the evidence on which the district court's judgment is predicated.

The motion to dismiss the appeal is denied.