Thomas v. Thomas

Full title: THOMAS v. THOMAS

Court: Court of Appeal of Louisiana, Orleans

Date published: Oct 20, 1952

60 So. 2d 716 (La. Ct. App. 1952)

Opinion

No. 19908.

October 20, 1952.

APPEAL FROM CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, DIVISION "F", ALEXANDER E. RAINOLD, J.

M. C. Scharff, Bernard A. Dempsey, New Orleans, for plaintiff and appellee.

Gamble Gamble, Harry P. Gamble, Jr., New Orleans, for defendant and appellant.

JANVIER, Judge.

This matter comes before us on motion of defendant-appellant to remand it to the Civil District Court for the Parish of Orleans, for the reason that the transcript does not evidence the alleged fact that, prior to the taking of any testimony, counsel for appellant (mover) orally objected to the filing by plaintiff of the supplemental and amended petition and orally objected to any consideration of the allegations or pleas set forth therein, or to the introduction of any evidence in support thereof.

Counsel for mover (defendant-appellant) stated to us that these objections had been made and that it is essential that the transcript should so indicate. Counsel for plaintiff-appellee stated that they had no recollection concerning these objections and did not know whether the said objections had or had not been made, and that, therefore, they were unwilling to stipulate that the objections had been made, but they further stated that they had no objection to the remanding of the matter to the end that any necessary corrections might be supplied if in the District Court, it should be determined that the record is defective in this regard.

We have concluded that, under authority of Article 898 of our Code of Practice, appellant may be granted an opportunity to have the record corrected if there is any error therein, or to supply any omission if there is any omission, and that, for this reason, the matter should be remanded to the Civil District Court. In the meantime and pending further proceedings in this regard in the Civil District Court, we shall suspend our judgment in the matter.

It is therefore ordered, adjudged and decreed that this matter be and it is remanded to the Civil District Court to the end that that court may determine whether the record is defective or whether there are omissions therein, and that the transcript may then be sent back to this court for further action by us.

Remanded.