Hake v. Lee

104 La. 146

• Court: Supreme Court of Louisiana
• Decided: November 15, 1900
• Docket: No. 13,354
• Status: Published

Opinions

On Motion to Dismiss.

The opinion of the court was 'delivered by

Breaux, J.

Plaintiff addressed a petition to the District Court for an appeal. On this petition the judge of the District Court granted 3iim an appeal returnable to the Supreme Court on the second Monday of November, 1899. This appeal was granted in conformity with the decree of this court rendered in proceedings on mandamus, instituted to compel the respondent judge to grant him an appeal. State ex rel, Paire vs. Judge, 52 Ann. 103. The order of appeal was dated in December, 1899, but the return day of the appeal was fixed for the preceding November, the order being granted nunc pro time.

The transcript of appeal was filed in the office of the clerk of the Supreme Court on the second day of February, 1900. On the eighth day of February, defendant filed a motion to dismiss the appeal, on the ground that the plaintiff had failed to file a transcript of appeal at the date that the appeal was made returnable.

Appellant, in the first place, insists that the motion to dismiss the appeal was filed too late, as it was filed more than three days after the filing of the transcript. This defense, to prevent dismissal of an appeal, was urged in Dwight vs. McMillan, 4th Ann. 350. The court did not sustain it, but, on the contrary, the court held that a motion to dismiss on the ground that the transcript was not filed in time, was still in time, although made more than three days after the filing of the record. Regarding the appellee, the court said that he could not be held to constant vigilance after the legal delay has passed in watching, day by day, the docket, to see at what time the tardy appellant will file his appeal. A similar motion to dismiss the appeal was again considered in McDonough vs. DeGruys, 10th Ann. 75, and again the appeal was dismissed. Recently, in Coudroy vs. Pecot, 51st Ann. 495, this court reiterated that the prior ruling was correct, and said: “The first return day having passed without the filing of the transcript, appellee was not called upon to be in court upon any subsequent return day for the parish, to ascertain whether the transcript would be filed, and if so, at what time.” But plaintiff urges further, in support of his appeal, that he obtained an extension of time. From the foregoing statement it is evident that plaintiff could only retain his right of appeal by obtaining an extension within which to file his appeal, which he has obtained.

On the 22nd of November, 1899, he filed an application for an extension to the second Monday in January, 1900, which was granted on the day following, for reasons sustained by plaintiff’s oath, which the court deemed sufficient. On the second Monday in January, 1900, he applied for another extension, and as that was a legal holiday, the order granting the time asked for was entered on the ninth of January, extending the time to the fifth of February. We have noted that the transcript was filed on the third day of February. This was amply in time, and, therefore, the appeal will not be dismissed. It was necessary to grant the delays' applied for, otherwise it would be useless to sue out a mandamus to compel the judge of the District Court to sign an order of appeal. The time within which to complete the appeal nearly always elapses before final decision. Ex necessitate rei there must be an extension granted. The motion to dismiss the appeal is denied.