Succession of Sellars

192 So. 2d 184, 1966 La. App. LEXIS 4824

• Court: Louisiana Court of Appeal
• Decided: November 7, 1966
• Docket: No. 2501
• Status: Published

Opinion

CHASEZ, Judge.

In due course, the Civil District Court rendered a judgment on the 15th day of July, 1966 on oppositions filed to the Executor’s account in the Succession of Irene Sellars Videau by Mrs. Valda Fay "Videau Farrell. A suspensive appeal was •granted to Jules L. Videau, the Executor of the Succession, from part of the judgment, which appeal was returnable to the •Court of Appeal, Fourth Circuit, on September 12, 1966.

Without notice to Counsel for Appellant, there was filed into the record certain letters and documents which, it is contended, were not offered in evidence at the trial before the District Court, and the Executor, on September 8, 1966, filed a Motion in the District Court to have this •extraneous material purged from the record and obtained an order from the District Court extending the date for the filing of the transcript of appeal taken in the matter until ten days after a judgment on the Rule had been rendered. "This Order was signed by the District 'Court Judge on the 8th day of September, 1966. On the 9th day of September, 1966, the Deputy Clerk of the Civil District 'Court certified that the transcript of appeal in the matter, returnable on the 12th day of September, had been completed in accordance with the rules of the Court of Appeal, but indicated that the rule filed by appellant to remove from the record the documents above referred to was still pending trial and requested that an additional delay until the 28th day of October, 1966 be granted to perfect the appeal in this matter. This Order was signed by the Judge a quo.

On September 15, 1966, Mrs. Valda Fay Videau, wife of Thomas C. Farrell, Jr., the opponent to the account of the Executor and Appellee herein, filed a Motion to Dismiss the Appeal of the Executor, contending that the exclusive method of extending the return date of appeals is granted to the clerk charged with the preparation of the record when it will not be possible to complete the record in time for filing on the return day, and that on Monday, September 12, 1966, the date on which this appeal was returnable, the transcript was not lodged with the Appellate Court, although the record was complete.

The record herein discloses that two Orders were signed by the Court extending the return date of this appeal. One Order was presented by the Appellant requesting the extension of the date until ten days after the judgment on the Rule. The second Order was on the application of the Clerk of Court requesting an extension until the date of October 28, 1966. Both Motions were filed timely and there is no doubt in our minds that they were correctly signed by the District Judge, for the record could not be a true and complete record of what should be contained in the record on appeal until the Rule pending before the Court was tried and the judgment of the Court rendered thereon.

The record discloses that the Court rendered its judgment in the District Court on the 7th day of October, 1966, deleting from the record some of the documents directed to its attention by appellant.

The record before us indicates that this appeal was properly lodged in the Court of Appeal on October 14, 1966. Therefore the Motion to Dismiss the Appeal filed by Mrs. Valda Fay Videau, wife of Thomas C. Farrell, Jr. on October 18, 1966 is denied.

Motion to dismiss appeal denied.