[32] A reading of Article 883 of the Code of Practice and Act No. 234 of 1932 demonstrates the fact that our legislature was liberalizing the constitutional right of appeal. The construction placed on these legislative enactments by the majority opinion of the Court restricts the constitutional right of appeal, for the majority opinion holds that the three-day period of grace means ordinary and not judicial days.
[33] Article 883 of the Code of Practice reads:
[34] "If the appellant has not filed in the Supreme Court, on the day appointed by the inferior judge, the record from the court below, and was prevented from doing so by any event not under his control, he may either in person or by attorney apply to the court before the expiration of three days, after which the appellee may obtain a certificate from the clerk declaring that the record has not been filed, and may demand a further time to bring it up, which may be granted by the court if the event causing the delay be proved to its satisfaction; the court may even grant an injunction to the appellant, during the further time allowed, to suspend the execution on the judgment appealed from, if at the time of petitioning for such further delay, the appellee has already required of the clerk the certificate necessary for the pursuit of such execution."
[35] The pertinent part of Act No. 234 of 1932 reads:
[36] "That whenever an appellant files an incomplete transcript, or files the transcript or a further application for anextension, within three judicial days after the return day * * *."
[37] The issue here is the application for an extension oftime in which to file a transcript in this Court. In clear and unambiguous language the last expression of the legislature used in the statute, Act No. 234 of 1932, is that the three days of grace for the filing of the transcript for a further extension of time are judicial and not ordinary days. The admonition of Article 13 of the Revised Civil Code is that "When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit." For the purposes of this dissent, I take it that the term used in the majority opinion "ordinary days" means calendar days, and the term used by the legislature in its statute, Act No. 234 of 1932, "judicial days", referred to days that a court transacted business.
[38] The record discloses that the return date in this appeal was fixed by the judge of Division "D" of the Civil District Court for the Parish of Orleans for Friday, August 5, 1949. On Tuesday, August 9, 1949 the City of New Orleans, appellant, filed in this Court a motion requesting an extension to September 6, 1949 for filing of the transcript of appeal, which was granted. Subsequently the return day was further extended until October 6, and the transcript was filed on October 5. The question at issue is whether the motion for an extension for filing the transcript, filed on Tuesday, August 9, 1949, was timely filed. The original return day was a Friday (August 5); the day following was Saturday, August 6th, a day on which the Clerk's Office of this Court is not open. The 7th of August was a Sunday, a dies non. The 8th was a Monday, and on the next day, Tuesday, August 9th, the motion for an extension of time was filed. Under our computation this motion was filed within the three judicial days of grace, Act No. 234 of 1932, and the days of grace must of necessity be "judicial" and not "calendar" days, because the appellant has no chance of showing that he was free of fault, or be able to file the transcript other than on a judicial day.
[39] Our Court has decided that the three days of grace are judicial days:
[40] Roy O. Martin Lumber Company v. Mullen, 1927, 173 La. 390,137 So. 72; Holz v. Fishel et al., 40 La.Ann. 294, 295, 3 So. 888; Redmond v. Mann, 23 La.Ann. 373; Brickell v. Conner, 10 La.Ann. 235; Farmers' Manufacturers' Aid Ass'n v. Strawbridge, 24 La.Ann. 126; Vancampen v. Morris, 6 Rob. 79; Palfrey v. Winter, 8 La. 205, 206; Pond v. Horton, 7 La. 176; Rhea v. The John 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 Roane v. Wood, 32 La.Ann. 801, 804; Mix v. Hawkins, 115 La. 12, 38 So. 877; Levy v. Levy, 52 La.Ann. 1920, 28 So. 246; Hays v. Mayer, 117 La. 1067,42 So. 505; Lopes v. Sahuque, 1904, 114 La. 1004, 38 So. 810; Rost v. St. Francis' Church, 5 Mar., N.S., 191.
[41] The last solemn expression of legislative will is that the three days of grace are judicial days, and when the majority opinion of the Court gives no effect to the language of Act No. 234 of 1932, which says they are judicial days, and under the pretext of pursuing the spirit of the law declares them to be ordinary days, that is a refinement which I do not fully understand. When the majority opinion so holds, it is not deciding a judicial controversy, but is assuming a position of authority over the governmental acts of another co-equal department of government, an authority which plainly we do not possess.
[42] I respectfully dissent.