Kirkman v. Butler

12 La. 535

• Court: Supreme Court of Louisiana
• Decided: October 15, 1838
• Status: Published

Opinion

Martin, J.,

delivered the opinion of the court.

The dismissal of the appeal in this case, is asked for, on the ground that it was made returnable to the 1st Monday of October, 1837, and the record was not filed until one year thereafter.

The appellant has referred us to the cases of Rost vs. St. Francis’s Church, 5 Martin, N. S., 191, and Wells’s Heirs vs. Lamothe, 10 Louisiana Reports, 410. In both these cases the terms to which the appeals were made returnable, entirely failed, (to wit: October term, 1825 and 1835,) but the transcripts of the records, were filed within three judicial days at the following terms.

The present case is very different. In October, 1837, there was no entire failure of the court; but there were three judicial days, to wit : the 6th, 7th, and 10th of October. It is true, no business was done at this term on account of prevailing sickness, and an internal commotion. The counsel for the appellant, contends, that this circumstance ought to be received as an excuse for the delay. Neither the sickness or the commotion excited much alarm, until several days after the first day of the term. The court did not meet until the fourth, and its sitting was protracted to the eighth day of the term, during which there were three judicial days. There was, therefore, sufficient time to file the record, which might have been done, even on the days the court did not sit, by filing them with the clerk.

The appeal must, therefore, be dismissed with costs.