Opinion
No. 19804.
October 2, 1951.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, FRANK J. STICH, J.
R. A. Dowling and Ed. J. DeVerges, New Orleans, for plaintiff and appellant.
Legier, McEnerny Waguespack, New Orleans (Harry McEnerny, Jr., New Orleans, of counsel), for defendants and appellees.
Defendants-appellees move to dismiss plaintiff's appeal on the grounds that they were not served with citation of appeal, and that the transcript is incomplete and defective for the reason that certain documentary evidence is not included therein.
The first ground urged for the dismissal of the appeal must fall. Any failure to serve the appellees with citation of appeal is cured by their making appearance and urging the second ground for dismissing the appeal. Appellees must be held to have waived citation of appeal by asserting the other ground for dismissal. Phillips v. Phillips, 160 La. 813, 107 So. 584; Succession of Williams, 156 La. 704, 101 So. 113; Commercial National Bank v. Sanders, 132 La. 174, 61 So. 155; Succession of Baumgarden, 35 La. Ann. 127; Nicholson Co. v. Jennings, 27 La. Ann. 432; Lee v. Goodrich, 21 La. Ann. 278; Louisiana Power Light Co. v. Mosley, La. App., 18 So.2d 210.
Six exhibits offered during the course of the trial by the appellees were not filed in the lower court until after the original transcript was lodged with us. Appellant has supplemented the transcript by presenting to and filing with us the certificate of the clerk of the trial court showing that the exhibits were filed in evidence and the clerk has indexed them and certifies that they are in the vault of the Civil District Court for the Parish of Orleans.
Under the provisions of LSA-R.S. 13:4433, an appellant may, before the day on which the motion to dismiss is fixed for trial, cure and correct any deficiency or informality in the transcript, and by the terms of art. 898, C.P., he is given the right, until the time of the argument, "to correct such errors or omissions". It appearing that the transcript is complete, the second ground urged for dismissal is now without merit. The exhibits may be obtained by us whenever necessary. See Boland Mach. Mfg. Co., Inc., v. Favret, La. App., 176 So. 401, 402; Murphy v. B. Mutti, Inc., La. App., 176 So. 402.
Therefore, the motion to dismiss the appeal is overruled.
Motion overruled.