Filiberto v. Evans

118 So. 844, 9 La. App. 104, 1928 La. App. LEXIS 564

• Court: Louisiana Court of Appeal
• Decided: August 13, 1928
• Docket: No. 11,353
• Status: Published

Opinion

ON MOTION TO DISMISS APPEAL

CLAIBORNE, J.

From a judgment against him, the defendant, Augustus G. Williams, Recorder of Mortgages, obtained an order of appeal returnable to this Court “on the 24th day of February, 1928.”

On that day the appellant filed an application for and obtained from this Court an order extending the return day “to the 27th day of March, 1928.” On March, 28, 1928, the day after the extended return day, the appellant filed a second application for a further extension, and upon the samé day obtained an order extending the return day “to the 27th day of April, 1928.”

The transcript in this case was filed April 27, 1928.

On June 6, 1928, the plaintiff and appellee filed, in this Court, a motion to dismiss the appeal for the following reasons:

Mover, however, represents that the application of the appellant filed on March 28, 1928, came too late, being the day after the extended day as fixed by this Court, and the order of this Court granting to the appellant until April 27, 1928, to file the transcript was illegal and improvidently granted. That no transcript having been filed on March 27, 1928, nor any application made1 to this Court on said date, March 27, 1928, for a further extension of the return day, all subsequent ¡proceedings are null and void as coming too late.

That the transcript of appeal not having been filed in time the appeal should be dismissed.

The motion must prevail.

The precise point involved in this case was decided by this Court, following the Supreme Court, in the case of Richardson vs. Henderson, 5 La. App. 661.

This Court said:

“An extension of the return day does not carry with it days of grace.

“A second or subsequent application for an extension must be made on or before the day to which the extension is made.”

An order inadvertently rendered after the return day granting to an appellant an.additional delay for filing the-transcript of appeal after the return day will be rescinded by the Supreme Court on its own motion; such an order cannot save the appeal. 1 La. Dig. 511, 512.

“A motion to dismiss the appeal for failure to file the transcript in time may be made at any time.”