
    HENNEN vs. HENNEN.
    EASTERN DlST.
    February, 1837.
    APPEAL FROM THE COURT OF THE, FIRST JUDICIAL DISTRICT.
    "Where the testimony has been taken down in writing, and the record contains all the evidence, the judge must so certify, and no other statement of facts is required.
    So, where either party requires the clerk to take down the testimony in writing, which shall serve as a statement of facts, the judge cannot be required to make one.
    This is an application for a mandamus. ■
    
    The defendant filed his affidavit, stating that he had called on .the district judge, for the first judicial district, to make a statement of facts according to law, and that he refused : wherefore, he took a rule on said judge to show cause why a mandamus should not issue, compelling him to make a statement of facts.
    
      The judge showed for cause: “ That before the trial of said cause, upon the demand of the counsel of plaintiff or defendant, or of both, all the parole evidence offered in the case was taken down in writing by the clerk, under the ar~ tide of the Code of Practice to that effect: that all the written evidence was noted by the clerk as it was offered by either party, as being offered in evidence : that some original records of the District Court, some"of the Parish and Probate Courts, and some of the United States Court, as will appear by the minutes of evidence taken by the clerk, were offered and read in evidence, and, as I understood, by consent and agreement of parties, no objection being made. *
    “ That under these circumstances, the undersigned considers that he is not bound by law, and cannot make any statement of facts, the case being one where the evidence is taken down by the clerk, which supersedes, dispenses with, and would render illegal any statement of facts.
    “The court has stated to the appellant, that whenever, in the course of making out the record of appeal} the clerk finds it necessary to call for records other than those of this court, the court will take steps to compel the party offering such evidence, to furnish copies, or cause copies to be procured at his expense, so as to complete the record.”
   Bullard, J.,

delivered the opinion of the court.

The judge of the first district shows for cause, why he should not be ordered by this court to make a statement of facts, that before the trial of the case, upon the demand of the counsel of plaintiff or defendant, or of both, all the parole evidence offered was taken down in writing by the clerk. That all the written evidence was noted by the clerk, as it was offered by either party. That some original records of the District, Parish and Probate Courts, and some of the Court of the United States, were offered and read in evidence, and, as he understood, by consent and agreement of parties, no objection being made. Under these circumstances, he conceives he is not bound by law, and cannot make any statement of facts.

Where the tes-Himony has been »taken down in writing, and the .record contains all the evidence, the judge must so certify, and no other statement of facts is required.

Sowhere either party requires the clerk to take down the testimony in writing, which shall serve as a statement of facts, the judge cannot he required to make one.

The Code of Practice provides, that when the depositions of witnesses have not been taken in writing, the party intending to appeal, must require his adversary to draw jointly with him a statement of facts. If he refuse, or the parties cannot agree as to the manner of drawing it, the court, at the request of either, shall make such statement, according to their recollection of the facts, or from the notes taken on the trial. But if the testimony produced had been taken in writing, and the record contains all the evidence, the judge must so certify. Code of Practice, articles 586, 602, 603.

Either party may require the clerk to take down the testimony in writing, which shill serve as a statement of facts, if the parties should not agree to one. Code of Practice, article 601.

It appears to us this is not one of the cases in which the judge is required to make a statement of facts.

Let the rule be discharged.  