
    (89 South. 628)
    No. 23799.
    BILICH et ux. v. MATHE.
    (April 5, 1920.
    On Motion to Eliminate Depositions from the Record, April 4, 1921. On the Merits, June 30, 1921. Rehearing Denied Oct. 4, 1921.)
    
      (Syllabus by Editorial Staff.)
    
    1. Appeal and error <&wkey;392 — Appeal not dismissed for inaccuracy in appeal bond.
    In view of Act No. 112 of 1916, § 9, appeal will not be dismissed for any inaccuracy or error in the appeal bond or for insufficiency of security, where the defendant has not been put in default in the district court in the manner directed by the statute.
    On Motion to Eliminate Depositions from the Record.
    2. Appeal and error &wkey;*837(IO) — Depositions in record but not in evidence cannot be considered on appeal.
    Depositions in the record on appeal not offered in evidence cannot be considered in deciding the ease upon its merits, and a motion to eliminate them will be allowed.
    On the Merits.
    3. Municipal corporations <&wkey;>706(6) — Evidence in action for death by being run over by automobile held to warrant dismissing the case.
    In an action against an automobile driver for the death of plaintiff’s six year old boy by being run over, evidence held such as to warrant dismissing case.
    Appeal from Twenty-Ninth Judicial District Court, Parish of Plaquemines; R Em-met Hingle, Judge.
    Action by Andrew Bilich, Sr., and wife, against Seymour J. Mathe, for damages for the killing of their six year old- son by an automobile. From a judgment dismissing the suit, the plaintiffs appeal.
    Motion to dismiss appeal overruled, motion to eliminate depositions from record allowed, and judgment affirmed.
    George Sladovicli, of New Orleans, for appellants.
    Oliver S. Livaudais, of New Orleans, for appellee.
   On Motion to Dismiss Appeal.

O’NIELL, J.

The defendant has moved to dismiss this appeal for. irregularities in the appeal bond. He obtained, in the district court, a rule on appellate to show cause why the appeal should not be dismissed; but the rule was not served upon appellant, nor was any further proceeding had in the matter. According to section 9 of Act 112 of 1916, an appeal should not be dismissed for any inaccuracy or error in the appeal bond, or for insufficiency of .the security, unless the appellant has been put in default, in the district court, in the manner directed by the statute: See Hurry v. Hurry, 144 La. 877, 81 South. 378.

The motion to dismiss the appeal is overruled.

On Motion to Eliminate Depositions from the Record.

The defendant, appellee, has filed a motion praying that the depositions of Jacob Bilich, Philip J. Schoen, Anthony Bilich, Mrs. Anna Aiola, Mrs. Agnes Rittener and Josephine Aiola be eliminated from the transcript of appeal, and be disregarded by this court as evidence in the case, because the depositions, which were taken under commission to be used in evidence on behalf of plaintiff, were not in fa,et offered in evidence. The record discloses that the depositions were not offered in evidence; hence they cannot be considered by this court in deciding the ease upon its merits. See Wilkin-Hale State Bank v. Tucker (No. 24421) 148 La. 980, 88 South. 239, in which the opinion was handed down to-day.

Certain documents annexed to appellee’s motion would show a very plausible reason why the depositions were not offered in evidence, if we could consider the documents as evidence before us. The only method by which we could get such documents before-us as evidence would be to remand the case for a trial of this motion. Such a proceeding is unnecessary, because the fact that the depositions were not offered in evidence is a sufficient reason for our eliminating and excluding them from the record.

The transcript is so arranged and bound that it would be quite difficult to take the-depositions out without mutilating the record. It will suffice for the clerk of this court to mark the depositions referred to so that the court will not forget that they are not to be considered as evidence in the case.

It is ordered that the depositions of the six witnesses referred to herein be eliminated and excluded from the transcript of appeal and be not considered as evidence in. the case.

On the Merits.

PROVOSTY, J.

Plaintiffs are the parents of a six year old boy who was killed, by being run over by an automobile driven by defendant, and this suit is in damages. The accident occurred on Burgundy street, near the corner of Lafayette in tiffs city on a Mardi Gras day. Burgundy is one of the narrow streets of the city. It was during the day. A carnival procession of floats,, brass bands, etc., had just passed going towards Canal street, and was about two blocks ahead of the automobile which was following it. As is usual in such cases, the crowd from the banquettes had spread over the street as soon as the procession had passed, so that the automobile was moving slowly and cautiously in the crowd. Defendant was an experienced chauffeur. His wife, his mother-in-iaw, and his two sisters-in-law were in the ear with him. The witnesses for plaintiff tell an extravagant story of how defendant was driving at great speed and was not looking ahead, etc. These witnesses were so evidently willing that a court would be unfavorably impressed with their testimony even in the absence of contradiction with themselves and with each other. The learned trial judge said of them:

“Their testimony is so thoroughly inconsistent with truth and logic that the court expresses surprise that such litigation should have been instituted.”

The evidence as a whole leaves no doubt at all that the child ran off the sidewalk against the side of the automobile which was within a foot or two of the curb, and fell under the hind wheel. On his forehead was a gash, which indicated that his head must have struck against the fender of the car.

The judgment, dismissing the suit, is affirmed, with costs.  