
    No. 2107
    Second Circuit Appeal
    WATSON TIE COMPANY v. W. A. WALMSLEY, ET AL.
    (June 27, 1925, Opinion and Decree)
    
      (Syllabus by the Editor.)
    
    1. Louisiana Digest — Appeal—Par. 431, 729, 736.
    Where the record of testimony taken on the trial of an exception to the jurisdiction is incomplete the appellate court will, in the interest of justice, remand the case to the district court for addition to the record of the testimony on the trial of the exception or for further testimony which may he necessary to be taken to complete the record.
    Appeal from Eleventh Judicial District Court of Louisiana, Parish of Natchitoches. Hon. J. W. Jones, Jr., Judge:
    On motion to remand filed by the defendant appellant, case is remanded to the district court for further proceedings.
    Breazeale & Breazeale, of Natchitoches, attorneys for plaintiff, appellee.
    Rusca & Cunningham, of Natchitoches, attorneys for defendant, appellant.
   REYNOLDS, J.

In this case appellant has filed a motion to remand the case for the completion of the record by having added thereto the testimony adduced in the lower court on the trial of the question of the domicile of defendant, W. A. Walmsley.

To this motion is attached the affidavit of the trial judge to the effect:

“I further certify that a plea to the jurisdiction was filed in said case on the part of W. A. Walmsley, that it was regularly fixed for trial and that on the day of trial defendant introduced testimony to sustain his plea, that the testimony was reduced to writing by the court stenographer.”

There is also attached the affidavit of Deputy Clerk .of Court O’Quinn, in which he says that he has made a careful search of all note books on file in his office containing the original stenographic notes of evidence taken on trial of cases ,in the court of which he, is a deputy clerk, and that he could not find any stenographic note of evidence taken on the trial of the exception to the jurisdiction in this case and that the testimony was never reduced to writing.

Under this showing and on the authority of Trudeau vs. Railroad Company, 15 La. Ann. 717, we think the case should he remanded in order that the evidence taken on the trial of the exception may be added to the record.

In the event the missing testimony cannot be found, on the authority of Nichols vs. Harris, 32 La. Ann. 646, the case should be remanded for the taking of testimony on the question of defendant, Wm. A. Walmsley’s, domicile at the time of the filing of this suit in the District Court.

Por these reasons it is ordered, adjudged and decreed that this case be remanded to the District Court of the parish from whence it was appealed for addition to the record of the testimony taken on the trial of the exception of W. A. Walmsley to the jurisdiction of the court; and in the event this testimony cannot be added to the record because it cannot be found, then the case is remanded to the District Court for the taking of evidence on the issue raised by the exception to the jurisdiction.  