On Application for Rehearing.
The opinion of the court was delivered by
Monroe, J.Counsel for plaintiff, in his brief for rehearing, says: “The plaintiffs and appellees * * * contend that the judgment * * just rendered in this case is erroneous, not through any fault of this court, or through any fault or negligence of the plaintiffs * * * but for the reason that the clerk of the lower court, through an error on his part, believing that Act 130 of the Acts of the General Assembly (of 1898) * * * contained ■ the entire charter of the Town of New Iberia, referred this honorable court to that Act; instead of including in the transcript the amended charter of the city of New Iberia, as introduced in evidence upon the trial, which charter confers upon the Mayor and Trustees of the town of New Iberia the right to compel property owners to build sidewalks in front of their respective properties at their own expense. Tour Honors will note that since your decision in this case, the plaintiffs, for the first time, having learned that *494the charter of the town of New Iberia was omitted from the transcript of appeal, have secured the sworn statement of the deputy clerk of court who made the transcript, showing how the omission occurred, and also the sworn statement of the attorney, showing that it was impossible for him, or the plaintiffs in this suit whom he represented, to know that the transcript of appeal did not contain the charter of the town of New Iberia, and to these affidavits is annexed a copy of the amended charter of the city of New Iberia, as it was introduced in evidence in this suit upon the day of the trial.
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“Plaintiffs further contend that a rehearing should be granted, for the reason that amendment ‘four’ of the amended charter of the city of New Iberia, which was adopted by a vote of the people on the 18th day of December, 1880, and which section had not been modified or altered by any subsequent enactment, and which was re-enacted in Section 1, Act 33 of 1900, confers the necessary powers upon the municipal authorities to compel property owners to build their sidewalks at their expense”, etc.
The appended affidavit of the clerk sets forth that, through error, he omitted to include in the transcript, the amended charter of the town of New Iberia, “which was introduced in evidence on the trial * * * believing that Act 130 of 1898 included the entire charter of that town”, and that the transcrixit, when made, was handed to the. appellants, and was not submitted to the apx)ellees, who are not responsible for the omission mentioned. And he attaches to his affidavit a pamphlet which he describes as a certified copy of the amended charter of the city of New Iberia. The affidavit of the counsel for the appellees states that upon the trial in tha lower court he introduced in evidence the amended charter of the city of New Iberia, “which is printed in pamphlet form”, and that the clerk omitted the samé from the transcrix^t without his knowledge, and that he did not know of such omission until the case had been decided in this court. He therefore prays for a rehearing, and also asks that flhis court consider the evidence thus supxfiicd as though it had been included in the original transcript.
The transcript was completed October 16th, 1900, and filed in this court November 14th, and the brief of the counsel was filed upon December 6fh, following. There would seem to have been ample time, therefore, within which the counsel might have ascertained whether the transcript as thus filed contained the principal evidence upon which he *495relies, and we are of opinion that it was incumbent upon him, as a prerequisite to the argument of the case, to inform himself upon that subject. Aside from this, the note of evidence, which we find in the record, taken in connection with the indorsements upon the pamphlet called “The Amended Charter of the City of New Iberia”, which is attached to the application for rehearing', makes it a question of some doubt as to what was intended to be introduced or filed in evidence at the time of the trial, and we are inclined to think that this question was improperly left to be determined by the clerk. The note of evidence reads: “Introduced. Certified copy of Amended Charter of New Iberia, marked J.”, and, at another place in the transcript, we find the following- entry, to-wit: “Amended charter of the city of New Iberia, see Act of General Assembly of the State of Louisiana of 1898. Filed in evidence. In re 3392 marked J.” The transcript, however, contains no charter of any kind, amended or otherwise, and no agreement to the effect that the Acts of the General Assembly should be referred to in the bound volumes; and, that it was not intended that they should be so referred to follows from the fact that what purports to be the amended charter of the city of New Iberia was offered in pamphlet form, and the offer thus made is relied on as the basis of the present application for rehearing'. Examining- the pamphlet in question, which is said to be the identical one offered, introduced and filed, on the trial, we find, first, that it is not certified, though the offer calls for a “certified copy”; second, that, whilst it bears the indorsement, “Filed in evidence July 11th, 1900, In re Mayor & Board of Trustees vs. Harriet Weeks et als., No. 3392, Marked Pltff. J.”, it also bears the indorsement, in the same handwriting, “Received Dec. 26th, 1900”, and neither of these indorsements have any signature attached. The face of the document does not, therefore, show that it was filed at date of the trial, but rather indicates that it did not reach the hands of the clerk of the trial court until after the transcript of appeal had been lodged in this court. But not only is the pamphlet not certified, which assuredly was not the fault of the clerk, and not only does it not appear to have been filed, but it does not contain the law upon which the plaintiff relies. The particular section in question having been amended and re-enacted as Section 1 of Act No. 33 of 1900, which Act, it is not pretended, was either offered, introduced, or filed in evidence, or referred to, or relied on in argument.
The question presented, however, is one which, whilst affecting in the *496instant ease, the municipal corporation in its relations with only a single citizen, really exists as to every owner of real estate within the corporate limits. It is, therefore, particularly desirable that it should be correctly determined, in order that the rule to be established shall bear upon all alike. Under these circumstances, and in view of the established precedents authorizing special consideration to be extended to municipal corporations, the final judgment herein rendered will be so far amended as to make it a judgment of 11011-suit. Millaudon vs. Municipality, 1 Ann. 215; Delabigarra vs. Municipality, 3 Ann. 280; Police Jury vs. McDonough, 4 Ann. 352; Hassard vs. Municipality, 7 Ann. 495; Canal Co. vs. City, 44 Ann. 396; City vs. Werlein, 50 Ann. 1256.
And it is so ordered. Rehearing refused.
Ereaux, J., takes no part.