An exception of no cause or right of action filed in this suit was sustained and judgment rendered dismissing the plaintiff's suit. The judgment rendered was read and signed in open Court on March 14th, 1940. As far as the record which is presently before us shows, on March 7th. 1941, plaintiff petitioned the lower Court and obtained from it an order for a devolutive appeal returnable to this Court on or before the 30th day of April, 1941, conditioned upon the appellant furnishing bond in the sum of $50. Service of the petition and order for appeal was accepted and citation waived and the appeal bond duly filed on March 13th, 1941.
The appellant apparently took no further steps in the matter and the record was never transmitted to this Court by the Clerk of the District Court. In a certificate signed by a Deputy Clerk of Court and attached to the motion now under consideration, it is made to appear that the appeal was not lodged in this Court for the reason that the record was taken from the Clerk's office by Counsel for plaintiff and it was impossible to prepare the transcript of appeal, all of which was due to no negligence on the part of the Clerk of Court.
In the motion of the defendant-appellee, Capitol Stores Inc., to dismiss the appeal, it is averred that the record was recently located in the office of counsel for plaintiff-appellant, and was thereupon returned to the Clerk of the District Court from whom it was received and attached to the motion solely for the purpose of considering and acting upon the said motion. It is only in this manner that the record was lodged in this Court and that was not until Oct. 3rd, 1941, more than five months after the return date.
On the showing made, it appearing that it was not through any fault or negligence on the part of the Clerk of the District Court that the transcript of appeal was not filed in this Court on or before the return date, the motion to dismiss the appeal is well urged and will be sustained.
For the reasons stated, it is therefore ordered that the said motion be and the same is hereby sustained and that the appeal herein taken be dismissed at the cost of appellant. *West Page 17