On Motion to Dismiss Appeal.

ROGERS, J.

The defendant appealed devolutively from a judgment condemning him to pay his pro rata of the amount of two certain promissory notes. The evidence offered in plaintiff's behalf on the trial of the case in the court below consisted entirely of the depositions of two witnesses residing out of the state and certain documents identified by the witnesses and attached to their depositions. These documents are the promissory notes sued on, two written acknowledgments, photostatic copies of four bank checks, and a number of letters. The appellant, assuming to act under the provisions of Act No. 265 of 1918, instructed the clerk of the district court not to copy in the transcript plaintiff's evidence, oral and documentary, but to attach it in its original form to one of the triplicate copies thereof. This was done, and the record on the appeal consists of a transcript filed in triplicate, together with plaintiff's entire evidence as it was originally offered in the court below attached to one of the copies.

Plaintiff and appellee, alleging that the transcript as prepared and filed is not in the form required by law, has moved for the dismissal of defendant's appeal; or, in the alternative, that defendant be ordered to correct the transcript by having copied therein the testimony and documents offered in evidence by plaintiff and brought up to this court in their original form.

Code Prac. art. 585 provides:

"After the appeal has been allowed * * * the clerk of the court, from whose judgment the appeal is taken, shall * * * make a transcript of all the proceedings, as well as of all the documents filed in the suit, * * * in order that the same may be delivered to the appellee [meaning appellant] when demanded."

See Abraham v. Wallenberg, 130 La. 1096, 1100, 58 So. 895.

Appellant must return the transcript to the appellate court on the return day thereof. Code Prac. art. 587.

Rule I, § 2, of the Rules of Court declares:

"Transcripts in civil cases shall be made up and the matter of which they are to be composed transcribed in the following order, to-wit: * * * (2) original and interlocutory pleadings, with documents and exhibits annexed and orders of court, etc. * * * (3) documents introduced (save those annexed to the pleadings and already transcribed) in the order in which they are filed; * * * (7) oral testimony, in the order in which it is taken with inscription showing when taken; (8) other records offered in evidence. * * *" 136 La. VII, 131 So. XI.

Act No. 265 of 1918 also regulates the preparation of the transcripts of appeals in civil cases. It authorizes the appellant to deliver to the clerk of court "a written list of the portions of the record to constitute the transcript of appeal." The right thus accorded the appellant is subject to the reciprocal right granted to the appellee, timely served with a copy of such notice, to designate such portions of the record as he may desire incorporated in the transcript.

It appears, therefore, that under the codal article and rule of court, referred to and quoted supra, the testimony and documents filed on the trial of a civil case in the court below must be copied in the transcript. There is no authority in law for bringing them up in the original. Immanuel Presbyterian Church v. Riedy, 104 La. 314, 29 So. 149. And the rule is not at variance with the provisions of Act No. 265 of 1918, which merely permits an abridgment of the record for the purposes of the appeal, by permitting the parties to designate the portions of the record they desire to be placed or copied in the transcript. The statute, in the last paragraph thereof, expressly declares that: "In the absence of such direction by appellant, the transcript shall be prepared as the Law directs."

According to the provisions of Act No. 80 of 1912, it is mandatory that all transcripts of appeals to this court be made in triplicate for the use of the court. No extra charge is permitted for the preparation of the multiple copies. Under this statute each copy of the transcript of appeal must contain a transcript of all the testimony and documents filed in the court below.

The objection of plaintiff and appellee to the form of the transcript filed in this court is well grounded. The remedy in a case where the transcript does not conform to the established rules is to require the clerk of court by whom it was prepared to correct its defects, or, in a civil case, to dismiss the appeal if the circumstances should warrant such action. Section 14 of Rule I of the Rules of this court (136 La. viii. 131 So. XII). And such defects may be corrected "up to the time of argument." Code Prac. art. 898. Under the peculiar circumstances of this case, we do not think the appeal should be dismissed. The appellant caused certain original records to be attached to one of the copies of the transcript in the belief that, under Act No. 265 of 1918, he was completing the record for the appeal. He was mistaken in this, but, in view of the fact that this is the first time so far as we are informed that this precise question has been presented for decision, we are not disposed to deprive him of his right to be heard on appeal without giving him an opportunity to correct his error. This can be done by granting the alternative prayer of the motion filed by plaintiff and appellee. We wish to emphatically declare, however, that the present ruling is not to be regarded as a precedent to be followed in the future in similar cases.

Appellant argues that it is the duty of the appellee to procure a supplemental transcript to remedy the defects of which she complains, and he cites in support of his argument Act No. 265 of 1918; Wheeler v. Wheeler Lumber Co., 144 La. 639, 81 So. 209, and Planters' Lumber Co. v. Sugar Cane By-Products Co., 154 La. 21, 97 So. 267.

The appellant is primarily liable for all costs occasioned by his appeal, and the clerk of court may refuse to deliver the transcript before he is paid for preparing it. Act No. 24 of 1872. And plaintiff and appellee cannot be called on to pay such costs unless and until he is condemned to pay them by the judgment on appeal. State ex rel. Baltor v. Judge of Fourth Dist. Court, 30 La. Ann. 599. Under the statute of 1918, supra, the burden of paying for the transcript is not shifted from the appellant to the appellee. The act merely gives the right to the parties or to the court to cause a supplemental transcript to be filed. In Wheeler v. Wheeler Lumber Co., supra, the decision was solely on the correctness of the ruling of the district judge in permitting the plaintiff in the case to offer in evidence, over defendant's objection, the books and records of a defunct corporation to which the defendant was the successor. The reference in the opinion to Act No. 229 of 1910 and to Act No. 265 of 1918, by which it was amended and superseded, was made in connection with the return of the respondent district judge, and had no relation to the issue involved between the parties litigant. The case is not appropriate here. This observation is also applicable to the case of Planters' Lumber Co. v. Sugar Cane By-Products Co., supra. There the evidence omitted from the transcript was offered in the district court on behalf of the appellees themselves on the homologation of their receivers' account, but was not filed, and the transcript was prepared without any notice to the appellant that any such testimony had been actually reported stenographically. The omitted testimony was vital to the case of the appellees on the appeal, and it was for that reason that the court, in the interest of justice, gave them an opportunity, under Act No. 265 of 1918, of incorporating the testimony in a supplemental transcript, it having been transcribed and filed in the court below subsequent to the filing of the original transcript of appeal in this court.

For the reasons assigned, the motion to dismiss the appeal is refused at this time and the alternative prayer of the motion is granted; accordingly, it is ordered that the defendant and appellant herein cause to be prepared and filed in this court, within thirty days from the day upon which this opinion is handed down, a supplemental transcript in triplicate, each copy of which shall contain copies of the depositions of the witnesses and of all documents sent up to this court in their original form, and that for the purpose that all of the said original depositions and documents be returned to the office of the clerk of the district court. The right is reserved to the plaintiff and appellee to renew her motion to dismiss the appeal in the event the defendant and appellant shall refuse or neglect to comply with the foregoing order.

On the Merits.

LAND, J.

In the year 1865, C.H. Lawrence, with several others, established a firm of commission merchants in the city of New Orleans.

Wesly E. Lawrence, the youngest brother of C.H. Lawrence, became a member of this firm in the year 1881.

C.H. Lawrence died in the year 1885, leaving a widow, Mrs. Isabelle Lawrence, plaintiff herein, and two sons, Willie H. and Ralph R. Lawrence.

Wesly E. Lawrence administered his brother's estate, and the final account of his gestion filed in October, 1885, shows a fund of $18,846.60 to be distributed, in the sum of $4,423.30 to Mrs. Isabelle Lawrence, widow of C.H. Lawrence, and in the sum of $7,211.65 each to the two minor sons of decedent.

Upon the settlement of her husband's estate, Mrs. Isabelle Lawrence invested $17,000 in the firm of C.H. Lawrence Co., and received in consideration therefor two notes of $8,500 each, signed by C.H. Lawrence Co., and indorsed by Wesly E. Lawrence, the head of the firm.

These notes were extended or renewed from time to time, and interest was paid on same monthly up to February 1st, 1925; but on February 23, 1925, petitioner was notified that no further payments would be made, and the present suit was then filed.

At the date of the institution of this suit, Wesly E. Lawrence, indorser on both of these notes, was dead. His surviving widow in community had been placed in possession of one half of his estate as owner, and of the other half as usufructuary. The five forced heirs of decedent, including Everett G. Lawrence, defendant herein, had accepted his succession purely and simply, had been recognized as his sole heirs, and had been decreed to be the owners, subject to the widow's usufruct, of an undivided one-tenth interest each of all the property left them by their father.

The two notes sued upon are dated respectively May 1, 1905, and May 1, 1906. Each note is for the sum of $8,500, is payable thirty days "after sight," and "at 6% per annum, payable monthly," the word "interest" being omitted.

Plaintiff alleges that defendant, Everett G. Lawrence, was a member of the commercial partnership of C.H. Lawrence Co., that he withdrew from the partnership, thereby dissolving it, and that, as a former member of the partnership, defendant is liable for the whole amount of the notes, the sum of $17,000, with interest at 6 per cent. per annum from February 1, 1925 until paid.

In the alternative, plaintiff alleges that defendant is liable to her in the sum of $3,400, or his virile share, by reason of the fact that defendant is one of the five forced heirs of Wesly E. Lawrence, who had accepted his succession unconditionally.

Judgment was rendered in the lower court in favor of plaintiff in the sum of $3,400, with interest at the rate of 6 per cent. per annum from February 1, 1925 until paid.

1. From this judgment defendant has appealed. Plaintiff, however, has neither appealed from the judgment, nor answered the appeal and prayed that her main demand for $17,000 be considered and granted in this court. The reason for this is apparent, since the evidence offered in the lower court to prove that defendant was a member of the late firm of C.H. Lawrence Co. was purely hearsay, and wholly insufficient to establish defendant's connection with the firm as a former member.

2. Since the record shows that defendant accepted the succession of Wesly E. Lawrence purely and simply, he became bound as heir for his virile part, or one-fifth of the $17,000, due plaintiff by his deceased father, Wesly E. Lawrence, as indorser on the two notes.

It is well settled that an heir who accepts the succession unconditionally, that is, without the benefit of inventory, thereby binds himself for the debts or obligations of the deceased person, the same as if he himself had contracted them. Rev. Civ. Code, arts. 1013 and 1428; Berry v. Wagner, 151 La. 472, 91 So. 837; Griffing v. Taft, 151 La. 442, 91 So. 832.

3. The prescription of five years pleaded by defendant is without avail, since monthly interest on each note had been paid, and payment indorsed thereon, from May, 1905, up to January 1, 1925, and the present suit was filed on April 9, 1925. The payment of interest on a promissory note interrupts prescription. Canal Bank Trust Co. v. Bank of Ascension, 140 La. 465, 73 So. 269.

4. These interest payments were made by Wesly E. Lawrence during his lifetime, and by defendant, Everett G. Lawrence, after the death of his father. Although the word "interest" is omitted from each note, the clause in each of them, "at 6% per annum, payable monthly," has been interpreted by the parties to mean "monthly interest," and interest each month has been paid. The parties are necessarily bound by the construction which they themselves have placed upon this clause in these notes. The defense that the notes did not bear interest is therefore without merit.

5. Equally without foundation is the defense that the notes sued upon were held by plaintiff without any valuable consideration.

"Every negotiable instrument is deemed prima facie to have been issued for valuable consideration; and every person whose signature appears thereon to have become a party thereto for value." Article 2, § 24, Negotiable Instruments Law, Act No. 64 of 1904.

Besides, the evidence shows that the notes represent funds received by plaintiff from the estate of her husband for herself and for her minor children, and which were invested by plaintiff in the firm of C.H. Lawrence Co. In addition to this, the indebtedness on these notes has been repeatedly acknowledged to plaintiff by Wesly E. Lawrence and by the defendant in letters written by them to plaintiff.

6. Equally futile is the defense that the payments made to plaintiff up to February 1, 1925, were mere gratuities, paid monthly to plaintiff by Wesly E. Lawrence, deceased father of defendant, through love and gratitude entertained by him for plaintiff, who was the widow of C.H. Lawrence, deceased brother and former partner of Wesly E. Lawrence.

Numerous letters from Wesly E. Lawrence to plaintiff clearly state that he was using plaintiff's money, extending the notes, and paying interest on the loans.

In a letter to plaintiff from defendant, Everett G. Lawrence, of date May 27, 1919, defendant stated to plaintiff that all matters in which his father was interested would be taken care of in due time, that he would send "the interest" monthly, and that he inclosed check covering same.

Also in another letter to plaintiff from defendant, of date July 24, 1919, defendant stated to plaintiff that he would pay "the interest monthly," or "we will issue new notes, if you desire." Defendant also said in this letter; "Think I could arrange to take up one (note) in about 30 days, letting the other run, which, if you desired, I could arrange settlement within the year."

Again, in a letter to plaintiff from defendant of date January 27, 1920, defendant declared his intention to have the notes settled in due time, and that arrangements would be made whereby the first note would be paid April, 1920, and possibly a reduction made on the second note.

In addition to this, there is a statement on each of the notes sued upon, of date April 9, 1920, signed by the defendant, Everett G. Lawrence, and by his coheirs, to the effect that: "Said note has not been paid and this instrument is hereby entered in Part and Parcel into his estate."

It is clear, therefore, that these notes evidenced an indebtedness due by Wesly E. Lawrence to plaintiff, and that the monthly payments made were not gratuities, but were interest paid on the indebtedness.

Plaintiff died during the pendency of this suit, and her heirs, William A. and Ralph R. Lawrence, were substituted as plaintiffs in her place and stead.

Judgment affirmed.