WESTERN DIST. LE BLANC v8. BROUSSARD'S HEIRS. Neveu, attorney of the appellant, filed his affidavit, stating September, 1840. that, at his request, the evidence adduced by the parties was taken down by the judge who tried the case, and who promised to make a statement of facts. That it appears, by the certificate of the clerk, the judge has died since the trial of this cause, and that the evidence or statement of facts has been lost or mislaid, and cannot be found. "That the judge. after the trial, took time to advise, and it was some time afterward before final judgment was rendered and signed." Crow, for the defendants, moved to dismiss, as there was no evidence in the record, or statement of facts, to enable the court to try the case. 2. It will be seen that it was the appellant's fault that there was no statement of facts, for it was not until after the parish judge's death, which was six moths after the judgment, before any application was made to have the transcript made out. Neveu, for the appellant, strenuously urged that the case be remanded, to afford him an opportunity to have it properly tried and placed before the court, to be heard on the merits. He insisted that, whenever the justice of the case required it, this court had the power to remand for a new trial, and that in the present case, there was every reason and motive to remand. 2. It was no fault of the appellant that the testimony was not taken down, or a statement of facts made out. His counsel had urged the judge to do. it, but he failed or neglected, until he at last died without having made any. He insisted that the judge took a note of the evidence, and if it was lost, it was not the fault of the appellant. Martin, J., delivered the opinion of the court. In this case, the plaintiff and appellee moves to dismiss the appeal for want of the evidence on which the cause was tried, or a statement of facts. The case was tried before the probate judge, and judg- WESTERN DIST. ment signed on the 10th of December, 1839. An appeal September, 1840. was granted on the 28th of the same month, and in the following June the judge died. The attorney who tried the cause states, in his affidavit, that at his request the "evidence adduced by the parties was taken down in writing by the judge who tried the cause, and that said evidence or statement of facts has been lost or mislaid, and cannot be found." LE BLANC BROUSSARD'S Either party ties, when the except in a case The Code of Practice authorizes either party to have the may have the testimony, offered to the court, taken down in writing by the ed in court, taktestimony offerclerk. When this is done, there is no need of any statement en down by the clerk. The judge of facts. The judge has no authority, even at the request has no authority to do this of one of the parties, to perform this service. If he were to even at the redo it, it would be of no avail, except in a case in which the quest of the parparty intending to appeal, should unsuccessfully apply to the court has a clerk opposite party to make a statement of facts. In such a case, where the party the judge having a statement of facts to make, might give intending to appeal, fails in the testimony which he had taken in writing as a statement. getting the opposite party to Some courts of probate in this state, have no clerk. In make a these, the judge may probably do whatever is to be done the clerk, in the courts where one is appointed. The record my taken down shows, that in the court from whence this appeal is taken, ing will serve as there is a clerk. The testimony not having been taken a statement. down by the clerk, this case cannot be brought before us A statement of except on a statement of facts. Such a statement must be procured by the party intending to appeal, necessarily, before the appeal is granted. Code of Practice, 602. Scott vs. Blanchard. 8 Martin, N. S., 303. state by ment of facts, then the testimo by him in writ facts must be procured, by the party intending sarily, before the to appeal, neces appeal is granted An appellant to have a statement testimony is not taken down by the clerk before The appellant has asked of us to reverse the judgment, and remand the case for a new trial, in order to afford him neglecting the opportunity of having the case properly brought before of facts made us, the death of the judge of probates having deprived him out, when the of the means of doing so. If the appellant had lost the opportunity of bringing his the appeal is case before this court, by the death of the judge, he would.granted, cannot claim any relief be entitled to relief, as every suitor may claim our aid, from this court. when he has not deprived himself of it by his own laches. WESTERN DIST. The appellant having neglected to have a statement of facts vs. BEMISS ET AL. bate judge, who lived six months after the appeal was granted, caused him no injury. It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed, with costs. WALTON & SON VS. BEMISS ET AL. APPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF ST. Where a creditor at the foot of an account, in which he has a privilege on Where attacking creditors commence their revocatory actions about the same time, and use proper diligence, one shall not have exclusive privilege on the property fraudulently conveyed and recovered, simply because his suit was first commenced. The property must be divided pro rata among them. This is an action instituted the 10th April, 1835, by the plaintiffs, to recover from the defendants, Bemiss, Brashear & Co., the amount of a note for the sum of nine hundred and eighty-eight dollars and fifty cents, being the amount of an account for the sale of a carriage and gig, sold by them to said firm, and dated the first May, 1834. The plaintiffs allege that they have a privilege on the carriage or its proceeds, which is worth six hundred and seventy-five dollars, but that in November, 1834, Bemiss, one of said firm, and insolvent, attempted to make a transfer and sale of it, on his own account, to one Judson Harman, Milton Johnson, and Joseph S. Tarkington, and actually delivered WESTERN DIST. the same to Harman in pursuance thereof. V8. BEMISS ET AL. September, 1840. They allege that said sale is null and void, as made with- WALTON & SON out consideration, and in fraud of creditors, to the knowledge of the vendees, and pray that it be annulled, the carriage sequestered, and they allowed the benefit of their privilege. Harman pleaded a general denial, and averred that he purchased the carriage for a valuable consideration, from J. B. Bemiss, and in good faith. On the 21st April, 1836, there was judgment by default. made final against the defendants, Bemiss, Brashear & Co., for the amount of their note; and annulling the sale as to Tarkington and Johnson. The case was left open between the plaintiffs and Harman. At this stage of the proceedings, Dwight and Hartman intervened, and set up claims against the defendants Bemiss, Brashear & Co., alleging that the latter were in insolvent circumstances at the time of the sale of the carriage, and that it is null; that the plaintiffs have no privilege; but having previously instituted suit against the present defendants, they (intervenors) should be preferred. They pray that the vendor's privilege on said carriage be rejected, and the proceeds of the sale of it held subject to their judgment. To this petition of intervention, the plaintiffs pleaded a general denial; but join in the alleged nullity of the sale to Harman, and insist on the enforcement of their privilege on the price of the carriage. Upon these pleadings and issues, the parties went to trial. The plaintiffs produced their account of sale of the carriage and a gig, of the 1st May, 1834, amounting to nine hundred and eighty-eight dollars and fifty cents; at the foot of which was the following receipt. "Received payment by note, payable at four months, with the understanding that if the note is not paid when due, Messrs. Bemiss, Brashear & Co., are at liberty to give a city acceptance, adding interest at six per cent. until paid. " "M. WALTON & SON." WESTERN Dist. vs. BEMISS ET AL. There were many witnesses examined on both sides, touchSeptember, 1840. ing the insolvency of Bemiss at the time of making the sale WALTON & SON of the carriage to Harman, and also to establish the claims of the intervenors. It was also shown that the intervenors instituted the revocatory action about the same time that the plaintiffs commenced the present suit, and that both suits were brought to the April term, 1835. The intervenors joined in this suit to dispute the plaintiffs' right of preference. From all the evidence, the district judge decided that the sale of the carriage was null and void; that the plaintiffs be allowed their privilege on the carriage, or its proceeds, worth four hundred and seventy dollars, against Harman, and the claims of the intervenors were dismissed. Dwight & Hartman, the intervenors appealed. T. H. Lewis, for the plaintiffs, insisted on the affirmance of the judgment. The plaintiffs were entitled to a privilege on the carriage, being the vendors, and should be allowed the proceeds in preference to the intervenors. Splane, for the intervenors, objected to parole evidence being received to show the consideration of the note sued on. Its consideration is not attacked as fraudulent, and the admissions of Bemiss, the insolvent debtor, are not evidence. The intervenors should be allowed and paid by preference, having commenced the revocatory action first. Martin, J., delivered the opinion of the court. The plaintiffs sue on a note of the defendants, Bemiss, Brashear & Co., given for the price of a carriage, and claim a privilege on the carriage as vendors. For this purpose, they brought in the defendant Harman, who had purchased the carriage from Bemiss, his co-defendant, and they claim a rescission of the sale, as having been made in fraud of their rights, as creditors of Bemiss, Brashear & Co., who they allege were insolvent at the time of the sale, to the knowledge of Harman. The plaintiffs had judgment on the note. |