ON MOTION TO DISMISS AND ON APPLICATION FOR CERTIORARI.
The opinion of the Court was delivered by
Roché, J.On the first day of the present term appellees moved for tbe dismissal of this appeal on the ground that tbe clerk, in bis certificate, did not state that tbe transcript contained all the evidence adduced on tbe trial below.
Two days later, appellant filed bis application for an order to direct tbe clerk of the district court to correct bis certificate, and tbe application is resisted by appellees on the ground that it was not made before, or at the time of the argument as required by art. 898 of the Code of Practice.
It is true that the motion for a certiorari was made after tlie case had been submitted, and not, as erroneously contended for by appel lant’s counsel, after it bad been partially submitted. But it is clearly apparent that the fault is not imputable to appellant, if the clerk omitted to state the whole truth in his certificate. The transcript is voluminous, and it.contains a mass of documentary evidence and of parol testimony taken down in writing.
Hence, it is more than probable that tbe error is in the certificate.; and for that reason the appeal cannot be dismissed. Revised Statutes, *782section 36, Flint vs. Peck, 22 Ann. 246; Baltimore vs. Parlange, 25 Ann. 335; Burton vs. Hicks, 27 Ann. 507; Stafford vs. Harper, 32 Ann. 1076.
Now, as the appeal cannot be dismissed at the present stage, because the apparent deficiency of the transcript is not imputable to appellant, and as the case cannot be tried because it is not shown that the transcript does contain all the evidence offered, admitted and considered below, what will become of the case 7 Reason and law alike point out the course to be pursued, and require that appellant be allowed an opportunity to complete his transcript; as the three judicial days within which he could file his transcript had not yet expired when the case was argued and submitted, his right, under the law, to have his transcript corrected and completed is not affected by the provisions of article 898 of the Code of Practice. Such a course was pursued in the case of Trudeau vs. Railroad, 15 Ann. 717, in which the following rule was formulated. “ When a diminution of the record is suggested, the Supreme Court will order a certiorari to perfect it, although the case has been submitted for judgment.”
But as it may happen that the silence of the clerk in his certificate is proof of a negative fact, aud that the transcript does not contain all the evidence adduced at the trial, we shall not now dispose of appellee’s motion to dismiss the appeal, and shall postpone consideration' thereof until the clerk makes his return on the certiorari.
It is therefore ordered that a writ of certiorari issue to the clerk of the district court of the parish of Morehouse ordering him to complete his certificate to the transcript of appeal in this case, by stating positively whether said transcript does or not contain aLl the evidence adduced on the trial of said cause, and that said writ be made returnable on the 18th day of June, 1887.