#### CONLEY et al. v. HENRY.

No. 6092.

Court of Appeal of Louisiana. Second Circuit.

June 28, 1943.

On Motion to Dismiss Jan. 31, 1944.

Watson & Williams and Arthur C. Watson, all of Natchitoches, for appellant.

John G. Gibbs, of Natchitoches, for ap-pellees.

DREW, Judge.

On August 24, 1939, this case was lodged here and on September 24, 1939, the record was withdrawn by counsel for appellant and has never been returned to this court. It has been lost. The case was fixed for trial here in October 1941, in order that some disposition might be made of it.

Appellant filed a motion in which he set out that the record had been lost and prayed that the case be remanded to the lower court for the purpose of reconstructing the record. The motion set out that the record consisted entirely of the pleadings and written exhibits, which were copies of the minutes and judgment in a previous case on the docket of this court; that there was no oral testimony introduced on the trial below and that it would be a simple matter to reconstruct the record but, in case counsel are unable to reconstruct it, that the parties be allowed and ordered to file new pleadings and the matter be tried de novo. Appellant prayed accordingly. This court granted the motion to remand as prayed for. See 4 So. 2d 793.

On February 13, 1943, appellees filed in this court a motion to dismiss the appeal for the reason appellant had not reconstructed the record as ordered by this court, and for the further reason alleged that the case has become moot; that the question involved was an application to cancel an inscription in the Mortgage Records resulting from a judgment rendered and recorded on April 18, 1932, and that ten years have passed since that recordation, and therefore the inscription had prescribed and it would serve no useful purpose for the record to be made up again.

On March 14, 1943, appellant filed an ■ answer to the motion to dismiss in which he set out that he had made numerous efforts to have copies of the pleadings substituted for the lost originals and .that counsel for appellees would not agree to substi*150tute. He further alleged that on January-23, 1942, he mailed to the attorney for ap-pellees exact copies of the petition, answer and minutes of the Court in this matter and enclosed a proposed stipulation as to the substitution of these copies for the lost originals; that not hearing from the attorney, he again, on January 29, 1942, wrote him asking if there was any objection to the copies. He received a reply to this letter on January 31, 1943, in which attorney for appellees stated he had been unable to give the matter any attention and was expecting to go to the hospital for a thirty-day period.

On February 6, 1942, appellant again wrote appellees’ attorney requesting that he return the copies which he had received. No reply was received and on February 17, 1942, again by letter he requested the return of the papers and on March 18, 1943, again requested appellees’ attorney to return the copies he had received by mail. On March 23, 1943, attorney for the appellees by letter promised to return the papers. Not having received the papers, on May 14, 1943, appellant again wrote requesting the return of the papers. He further stated that the only copies available of the petition and answer were the ones he had mailed to the attorney for appellees and he had persistently failed to return them and therefore appellant was powerless to reconstruct the record. Copies of all the letters and documents above alleged upon are attached to the answer.

Counsel for appellant alleged that attorney for appellees should be ordered by this court to return the documents mailed to him on January 23, 1942, in order that he might reconstruct the record.

In further answer to the motion he denies the question involved in the case has become moot and alleged that a suit to reinscribe said judgment is pending in the lower court at this time. Appellees answered appellant’s answer here and attached a copy of the judgment rendered below for the purpose of showing its date, also copies of letters to the Clerk of this Court and to counsel for appellant.

It is very clear, to our minds, that the motion to dismiss cannot be sustained because the record was not reconstructed. Counsel for appellant made an offer to reconstruct the record and was prevented from doing so by the failure of counsel for appellees to return to him the copies of the pleadings necessary to reconstruct the record. Appellees’ counsel states he was ill and confined in the hospital for some time and that the documents were misplaced. Regardless of the reason, attorney for ap-pellees held the papers and cannot now complain of the record not being reconstructed when he was the one to prevent it.

It is unnecessary for us to pass upon appellant’s prayer for an order commanding appelles’ counsel to return the documents for the reason in open Court when this motion was tried both counsel informed us that the papers and documents had been returned a few days before the trial date. The documents appellant claims are necessary to reconstruct the record are now in his hands.

The other reason urged for dismissal argued by appellees that the case has become moot because the judgment has prescribed is without merit at this time. There is no record in the case other than applying to the motion to dismiss. If there is any merit in the motion, the proper time to present it is when the record is reconstructed and again lodged here. Furthermore, under the allegations in appellant’s answer that there is pending in the lower court a suit to reinscribe the judgment, evidence would be required in order for us to pass on the question.

It therefore follows that the motion to dismiss is overruled at the cost of mover.

On Motion to Dismiss.

TALIAFERRO, Judge.

Defendant herein, J. H. Henry, was awarded judgment by default in April, *1932, by the*District Court of Natchitoches Parish, against one Dennis Roque, under which the defendant’s interest in thirty (30) acres of land in said parish was seized and advertised for sale. Roque enjoined the sale and attacked the judgment as being a nullity for lack of valid citation. The lower court sustained the attack and annulled the judgment from which Henry appealed devolutively to this court. Here, the judgment was reversed and Roque condemned to pay damages for the wrongful issuance of the injunction to the amount of One Hundred ($100) Dollars. Roque v. Henry, La.App., 189 So. 358. However, a short time before this decision was rendered, Roque executed what purports to *151be an act of sale of the seized property unto William Bauernschmidt and Louis Cul-pepper. This occurred after the judgment against Roque had been timely inscribed in the mortgage records and operated as a judicial mortgage against Roque’s interest in the land when seized.

On March IS, 1939, Bauernschmidt executed to A. R. Conley what purports to be a cash deed to him of his interest in the land.

On March 20, 1939, Conley and Culpep-per, asserting ownership of an undivided one-third interest in the land, instituted the present proceeding in which they seek by rule to have their title to the property cleared of the effect of the inscription of Henry’s judgment against Roque by erasure thereof from the records. Henry and the Clerk of Court were impleaded. They predicate their asserted right to this relief upon the judgment of the District Court rendered in Roque’s injunction suit, appeal from which was then pending in this court. The rule was answered and when it came on for hearing on April 6, 1939, one week after the decision of this court sustaining the validity of the judgment against Roque, Henry’s counsel objected to trial of the rule -for the reason that plaintiffs in rule were without right to have the inscription of the judgment canceled because the Court of Appeal had affirmed the validity of the judgment. This position was also expressly set up in Henry’s answer to the rule. The objection was overruled and the case was submitted to the court for decision. It was held under advisement until July 19, 1939, and on that date judgment was rendered in favor of plaintiffs in rule, ordering the inscription of the judgment canceled. Henry appealed sus-pensively from this judgment. The issues tendered thereby are now before us.

The original record after being filed in this court was loaned to one of the counsel of record, and lost. It had to be reconstructed. This incurred much delay as appears from the fact that the appeal was lodged here in 1939.

Appellant, Henry, filed here a motion to dismiss the suit for lack of interest in Conley and Culpepper to prosecute the same and stand in the judgment therein, alleging that they, on November 27, 1941, parted with their interest in the land involved by execution of an act of conveyance thereof to one D. G. Harvey. Copy of the deed is attached to the motion. Alternatively, the mover prays that the case be remanded for the purpose of taking evidence on the question tendered by the motion.

Conley and Culpepper, through counsel, moved to dismiss the appeal on the ground that the reconstructed record does not contain material evidence introduced in their behalf. Alternatively they submit that the primary question tendered by this appeal has become and is now moot, and for this reason the appeal should be dismissed. Their position is predicated upon the alleged peremption of the inscription of the original judgment in Henry’s favor and against Roque. It is alleged that this judgment was recorded in the mortgage records of Natchitoches Parish on April 18, 1932, and has not since been reinscribed. Therefore, they argue, its operative effect as a mortgage against said land has ceased, since the land has gone into the hands of bona fide purchasers. Henry’s counsel, replying to the appellees’ motion, stated that notice of lis pendens in the Henry-Roque suit was properly inscribed and, in addition, that a suit to revive the judgment against Roque had been filed in Rapides Parish District Court and had been prosecuted to favorable judgment, notwithstanding that Roque had made a voluntary surrender in bankruptcy.

To finally adjudicate the issues raised by the two motions, which are closely linked with the merits, original evidence will have to be introduced. This court is without jurisdiction to try issues of that character and for this reason it is our obvious duty and right to set aside the judgment and remand the case for new trial of the issues orginally raised and for trial of the issues tendered by the motions to dismiss.

For the reasons herein assigned, the judgment appealed from is set aside and this case is remanded to the lower court to be further proceeded with in accordance with law and the views herein expressed. Cost of appeal shall be paid equally by the parties; liability for payment of other costs will await final decision in the case.