Roy O. Martin Lumber Co. v. Mullen

From a judgment in favor of the plaintiff and against the defendant upon the main demand in the suit, and in favor of defendant and against the plaintiff for a part of the sum claimed in defendant’s reconventional demand, the defendant appealed. The order of appeal is dated January 5, 1927, and the return day fixed therein is February 15, 1927. The transcript was received and filed by the clerk of this court on February 16, 1927. On February 18, 1927, the plaintiff filed a motion to dismiss the appeal upon the ground that no extension of time had been asked for, and therefore the transcript was filed too late. In support thereof plaintiff cites articles 587 and 588 of the Code of Practice. •

The defendant answered the motion to dismiss; alleged that the transcript was prepared and forwarded, by express, to the clerk of the Supreme Court on February 14, 1927, and that it reached its destination and was filed within the days of grace allowed by law.

It appears that February 15, 1927, was the original return day, and the transcript was filed in this court on the day following that date. It is the law and the well-established jurisprudence of this state that an appeal will not be dismissed upon the ground alleged in plaintiffs motion herein. An appeal will be dismissed only where the transcript is not filed within three judicial days after the return day and no extension of time is regularly granted. Holz v. Fishel et al., 40 La. Ann. 295, 3 So. 888; Redmond v. Mann, 23 La. Ann. 373; Brickell v. Conner, 10 La. Ann. 235; Farmers’, etc., v. Strawbridge, 24 La. Ann. 126; Vancampen v. Morris, 6 Rob. 79; Palfrey v. Winter, 8 La. 206; Pond v. Horton, 7 La. 176; Rhea v. Steamer Simonds, 15 La. Ann. 712; Lacroix v. Bonin, 33 La. Ann. 119; Pierce v. Cushing, 33 La. Ann. 401; Police Jury of New Orleans v. Garrett, 19 La. Ann. 122; Copley v. Routh, 3 La. Ann. 189; Cousin v. Johnson, 21 La. Ann. 210; Dalton v. Viasco et al., 18 La. Ann. 651; Moriere v. Robinson & Jones, 20 La. Ann. 229; Verret v. Gaudin, 28 La. Ann. 138; French v. Harrod, 9 La. Ann. 21; Ducournau v. Levistones, 3 La. Ann. 245; Wood & Roan v. Wood, 32 La. Ann. 804; Mix v. Hawkins, 115 La. 12, 38 So. 877; Levy v. Levy, 52 La. Ann. 1920, 2S So. 246; Hays v. Mayer, 117 La. 1067, 42 So. 505.

For these reasons, the motion to dismiss is overruled.