Opinion
No. 14901.
June 25, 1934.
Appeal from First City Court of New Orleans; Wm. V. Seeber, Judge.
Suit by Floyd Odom against the Universal Life Insurance Company of Memphis, Tennessee. Plaintiff moves to dismiss an attempted appeal by defendant.
Decree in accordance with opinion.
Rudolph O. Vorbusch, of New Orleans, for appellant.
Warren M. Simon, of New Orleans, for appellee.
In a motion suggesting the dismissal of this appeal, appellee calls our attention to the fact that four documents which were offered in evidence are not in the transcript of appeal.
It is charged that the absence of these documents results from the fact that counsel for appellant failed to file them with the clerk of the court, a qua, and from this it is asserted that the fault lies with appellant and is not chargeable to the clerk.
Though the documents were offered in evidence in the trial court, they were not, at that time, filed and, in fact, had not been filed at the time the motion to dismiss the appeal was submitted in this court. They are not now in the transcript. Counsel for appellant brought them into this court in person on the day of the argument, but made no formal attempt to supplement the transcript.
The case is a suit on a health insurance policy which is alleged to have lapsed because of nonpayment of premiums, and the question involved is whether or not a certain payment was made in time to reinstate the policy before the commencement of the illness. The documents are relied upon as showing the date of the payment and the date on which the payment was remitted by the agent to the company. Manifestly they are essential to a proper determination of the controverted question.
Counsel for mover, however, have overlooked the effect of Act No. 234 of 1932 under which in such a situation as confronts us here we are required to grant to appellant at least two additional days for the purpose of permitting him to supplement the transcript.
It is therefore ordered, adjudged, and decreed that appellant is granted to and including June 30, 1934, within which to supplement the transcript in formal manner unless, during that time, the documents are filed in this court by consent of counsel for all parties.
It is further ordered that if the said documents be not filed prior to July 1, 1934, the appeal be, on that date, dismissed.
Action on motion to dismiss suspended.
HIGGINS, J., takes no part.