State ex rel. Luling v. Judge Fourth Judicial District Court

24 La. Ann. 333

Opinion

Wyly, J.

This is a proceeding by mandamus to compel the Judge of the Fourth District Court, parish of St. Charles, to execute a judgment, on the ground that the appellant had failed to file the transcript of appeal within the legal delay.

It appears that the return day, as extended, was the twenty-eighth of February, which was Sunday. The next day, between six and half-past six in the evening, the attorney of the appellant deposited in the clerk’s office the transcript, but the clerk being absent the filing was not indorsed thereon till the succeeding day.

The transcript being deposited in the proper office, within office hours, must be regarded as filed, although the formal indorsement thereof was not written till the next day.

Tlie return day occurring on Sunday, we think the appellant was entitled to the whole of the next day to file his appeal.

In view of the facts stated, we think the judge did not err in declining to execute the judgment pending on a suspensive appeal in this court.

Let the mandamus be disallowed and the petition be dismissed at the cost of the relator.