On Amplication eor Rehearing.
The opinion of the Court was delivered by
Fenner, J.Such grave and earnest complaint is made by the respected counsel for appellants, of our action in dismissing this appeal, that we have attentively re-examined the question, without discovering how we could have acted otherwise.
The appellants have filed a transcript of appeal, the clerk’s certificate to which, is absolutely deficient in every requisite prescribed by law. It is a bald certificate that the record contains a true and correct transcript of certain enumerated documents, without the slightest intimation that it contained a complete transcript of all the proceedings ■and testimony. ’We have never encountered a certificate so grossly defective.
This certificate was notice to appellants that their appeal could not be sustained upon the transcript filed, and made it their duty to take the proper proceedings provided by law to remedy the defect.
Timely motion to dismiss was filed upon the double grounds:
1st.» That the certificate was not such as required by law.
2d. That, in point of fact, the record was diminished by the omission of important documents offered in evidence.
Notwithstanding this additional notice, no steps whatever were taken by appellants to remedy defects.
Neither at nor before the time for argument was application made for time to correct errors as allowed by Art. 898 C. P. No application was made for mandamus to compel the clerk to grant a proper certificate, i£ he had illegally refused so to do, as allowed by C. P. 899, No certiorari was asked to perfect the transcript if incomplete.
The case was submitted on the motion to dismiss andthp merits of the case without reservation. Upon inspection of the record, we discovered, not merely the grossly insufficient certificate, but also an affidavit of the clerk, filed with and made part of the motion to dismiss, and of which, therefore, appellants were bound to take notice, to the effect that the attorney of appellants would not permit him to make a full and complete transcript, but refused'to pay for such, and enjoined him to make the transcript as it was made, and not to include certain other documents offered in evidence. This affidavit was not substantially contradicted by the counter-affidavit filed by counsel for appellants, which, *655instead of contradicting the facts, simply assigned reasons for his action.
In this state of case as submitted, we are at a loss to conceive of any ground upon which a different decision from that rendered by us. could have been anticipated.
Leaving out of view every thing except the defective clerk’s certificate, its deficiencies being patent, and no steps having been taken to correct them, and no application having been made for time for that purpose, before submission of the motion to dismiss, the continued existence, if not the origin, of the defect was attributable to the fault of the appellants, whose duty it was to present a complete and properly certified transcript; and they were not protected by the Act of 1839, now made part of Art. 898 C. P.
It has been the constant practice of this Court, from' the date of . the adoption of that act, to dismiss appeals for this cause under such circumstances.
1 An. 171,180; 2 An. 996; 3 An. 592; 4 An. 487; 7 An. 257, 442; 9 An. 190; 10 An. 180; 11 An. 644, 604; 19 An. 261; 22 An. 83; 27 An 68; 20 An. 21,141; 21 An. 458, and cases recently decided,-quoted in our original opinion.
See specially Gillaulet vs. Marcelin, 7 An. 442.
Succession Kemp, 9 An 190.
The question before us on this application is whether there was error in the decision rendered upon the case as submitted. There was none.
Rehearing refused.