Mitcham v. Mitcham

Supreme Court of Louisiana

Mitcham v. Mitcham

165 So. 635, 184 La. 111, 1935 La. LEXIS 1806

CourtSupreme Court of Louisiana

DecidedNovember 4, 1935

DocketNo. 33539.

StatusPublished

Cited by3 cases

This text of 165 So. 635 (Mitcham v. Mitcham) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mitcham v. Mitcham, 165 So. 635, 184 La. 111, 1935 La. LEXIS 1806 (La. 1935).

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Opinions

BRUNOT, Justice.

There was judgment for the plaintiff in the court of original jurisdiction. The defendants perfected a suspensive appeal from the judgment, returnable to the Court of Appeal, Second Circuit. After the case was submitted in the Court of Appeal, that court found that it was without jurisdiction ratione materiae and it entered the following order:

“It is therefore ordered that this appeal be transferred to the Supreme Court. The clerk of this court is ordered to transmit the record to the clerk of the Third district court of Union parish that transcript may be made up and filed in the Supreme Court, in keeping with its rules, within thirty days from date hereof.” 160 So. 145.

The motion to dismiss is based upon two alleged facts, viz.: That the transcript was not filed in the Supreme Court timely, and that no extension of time *113 within which to file the transcript in this court was applied for or granted.

It appears that the order or judgment of the Court of Appeal was rendered on April 1, 1935, and that the transcript was filed in this court June 28, 1935. It is, therefore, a fact that the transcript was not filed timely, and this court has judicial knowledge of the fact that no application has been made to it for an extension of time within which to file it. C.P. arts. 587, 883.

It is the duty of the appellants to file the transcript. Abraham v. Wallenberg, 130 La. 1096, 58 So. 895. Where transcript is filed after delays for filing have expired, a motion to dismiss the appeal must prevail. Whitney Central Trust & Savings Bank v. Greenwood Planting & Manufacturing Co., Ltd., 146 La. 572, 83 So. 834. In the transfer of a case by the Court of Appeal to the Supreme Court, it is the duty of the Court of Appeal to fix the return day. Act No. 19 of 1912, amending and re-enacting Act No. 56 of 1904; Scott v. Ratcliff, 167 La. 237, 239, 119 So. 33.

For the reasons assigned, the motion to dismiss this appeal is maintained, and the appeal is therefore dismissed, at appellants’ cost.

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BRUNOT, Justice.

There was judgment for the plaintiff in the court of original jurisdiction. The defendants perfected a suspensive appeal from the judgment, returnable to the Court of Appeal, Second Circuit. After the case was submitted in the Court of Appeal, that court found that it was without jurisdiction ratione materiae and it entered the following order:

“It is therefore ordered that this appeal be transferred to the Supreme Court. The clerk of this court is ordered to transmit the record to the clerk of the Third district court of Union parish that transcript may be made up and filed in the Supreme Court, in keeping with its rules, within thirty days from date hereof.” 160 So. 145.

The motion to dismiss is based upon two alleged facts, viz.: That the transcript was not filed in the Supreme Court timely, and that no extension of time *113 within which to file the transcript in this court was applied for or granted.

It appears that the order or judgment of the Court of Appeal was rendered on April 1, 1935, and that the transcript was filed in this court June 28, 1935. It is, therefore, a fact that the transcript was not filed timely, and this court has judicial knowledge of the fact that no application has been made to it for an extension of time within which to file it. C.P. arts. 587, 883.

It is the duty of the appellants to file the transcript. Abraham v. Wallenberg, 130 La. 1096, 58 So. 895. Where transcript is filed after delays for filing have expired, a motion to dismiss the appeal must prevail. Whitney Central Trust & Savings Bank v. Greenwood Planting & Manufacturing Co., Ltd., 146 La. 572, 83 So. 834. In the transfer of a case by the Court of Appeal to the Supreme Court, it is the duty of the Court of Appeal to fix the return day. Act No. 19 of 1912, amending and re-enacting Act No. 56 of 1904; Scott v. Ratcliff, 167 La. 237, 239, 119 So. 33.

For the reasons assigned, the motion to dismiss this appeal is maintained, and the appeal is therefore dismissed, at appellants’ cost.

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165 So. 635, 184 La. 111, 1935 La. LEXIS 1806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitcham-v-mitcham-la-1935.

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