
    No. 3509.
    M. N. Radovich v. Louis Frigerio Jr.
    The defendant ohjeoted to this action on the ground that the petition disclosed a partnership, and between partners only an action for the settlement of the partnership will lie.
    The court a qua erred In overruling the exception. The record discloses the fact that this demand grows out of a partnership between plaintiff and defendant for carrying freight and passengers for hire on the steamer Elia May. The objection to the form of the action should have been maintained.
    APPEAL from the Seventh District Court parish of Orleans.
    
      Oollens, Fergus Fuselier, JB. Fgan, for plaintiff and appellee.
    
      Breaux, Fermer & Ball, for defendant and appellant.
   On Motion to Dismiss

Wtly, J.

It is the duty of the appellant to bring up a correct transcript. If the record which he flies does not contain all the evidence, it is his duty to apply for a certiorari to correct it before the case is submitted on the merits.

In the case at bar the appellee moved to dismiss the appeal on the ground that the record does not contain all the evidence adduced at the trial below.

The case was submitted on this motion and also on the merits, without any application being made by the appellant to correct the record according to law. The fault is attributable to the appellant. It is, therefore, ordered that the appeal herein be dismissed at appellants costs.

On Rehearing.

On further examination we find that we erred in dismissing this appeal for diminution of the record, because the document supposed to be missing is in the record, being the account annexed to the petition, which probably by mistake was not marked C.” The identity of the document is sufficiently disclosed in the testimony of one of the witnesses, notwithstanding it was not marked “ C ” as stated. The motion to dismiss is therefore denied.

Osr the Merits.

The plaintiff alleges that on the twentieth of February, 1869, he entered into a verbal contract with the defendant, the owner of the steamer Ella May,” then lying near Madisonville in the parish of St. Tammany, by which petitioner was to superintend her repairs and fitting up and was to advance money for that purpose, to bring her round to the Mississippi river and run her in the lower coast trade; that petitioner was to act as captain and pilot of the boat and receive $250 per month for his services; also one-half of the net earnings of the boat and all advances made by petitioner for or on account of the boat were to be reimbursed to petitioner by the said Louis Frigerio Jr. Petitioner further represents that in compliance with said agreement he went to and took possession of said boat on twentieth February, 1869, brought her to the city, superintended her repairs, and after they were completed, ran her in the lower coast trade carrying freight and passengers for hire until seventeeth July, 1869, when he was, without ■ cause, removed from command of said boat by Louis Frigerio jr., etc. Further alleging that the defendant was about to dispose of the boat for the purpose of defrauding him, the petitioner prayedfor an attachment thereof and for judgment for $3163 23 the value of repairs.and wages alleged to be due him, and also for one-half the net earnings of said boat from the twentieth February, 1869, until seventeenth July, 1869, and costs.

The defendant excepted to the action on the ground that the petition disclosed a partnership, and between partners only an action for settlement of the partnership will lie.

The court overruled this exception, and the defendant, reserving the benefit thereof, answered to the merits. At the trial there was judgment for plaintiff for $2623 43 and the defendant appealed.

The record discloses the fact that this demand grows out of a partnership between plaintiff and defendant for carrying freight and passengers for hire on the steamer Ella May.” The objection urged to the form of the action should have been maintained.

It is therefore ordered that the judgment appealed from be annulled and that this suit be dismissed without prejudice to plaintiff asserting his demand in a proper form, plaintiff paying costs in both courts.

Rehearing refused.  