Hirst v. Xeter Realty, Ltd.

70 So. 339, 138 La. 398, 1915 La. LEXIS 1879

Opinions

On Motion to Dismiss.

PROVOSTY, J.

[1, 2] The appeal herein is moved to be dismissed on the ground that the return day was fixed for a day more than 60 days after the date of the granting of the order of appeal.

Nothing shows that this error is imputable to the fault of the appellant; it is not, therefore, ground for dismissal. Hodge v. Monroe Mercantile Co., 105 La. 668, 30 South. 142; Railroad Co. v. Baton Rouge Brick Yard, 136 La. 833, 67 South. 922.

This case is sought to be differentiated from those in which the court has heretofore refused to dismiss the appeal, on the ground of an erroneous return day having been fixed, by pointing out that in the present case the prayer for the fixing of the return day was not that it he fixed “according to law,” hut simply that it be “fixed by the judge.” We can see no difference between the two prayers. The prayer that the jud.ge fix the return day cannot mean anything else than that he fix it according to law. It cannot possibly he interpreted as meaning that he fix it in violation or disregard of law.

The motion to dismiss is overruled.