On Motion to Vacate Order of Extension and to Dismiss. On May 15, 1924, an appeal was granted herein to plaintiff, and the return day was fixed for July 10, 1924. On the return day, on motion of counsel for appellant, supported by an affidavit, an order was granted by this court extending the return day to September 10, 1924. The validity and sufficiency of this order is not questioned. However, appellant did not file the transcript on September 10th, but on that day made application through its counsel, supported by an affidavit made by the deputy clerk of the lower court, for a second extension. The ground for the application is stated in the affidavit made by the deputy clerk, and was that the clerk was unable to complete the transcript, for the reason that certain exhibits, offered in evidence by counsel for appellant, had not been filed. The court granted this application on the same day that it was made, and extended the return day to October 10, 1924. On October 9, 1924, a third application was made for time within which to lodge the record in this court. This application was supported by affidavit, and was based upon the ground that the clerk had not been able to complete the transcript, for the reason that certain documents, introduced in evidence, had been mislaid, and counsel hoped to find them in order to complete the record. The application was granted on the day on which it was made, and appellant was given until November 10, 1924, within which to file the record here. On November the 8th of that year the transcript was filed in this court.
Within three days after the filing of the record here, the appellee filed a motion to vacate the last two orders of extension granted, *Page 730 on the ground that they were entered upon an insufficient showing, and prays that said orders be set aside and that the appeal be dismissed.
Appellee questions the validity of the last two orders of extension, and particularly the first of those two, on the ground that they "were not properly and legally obtained, since the reasons for these extensions, as assigned in the affidavits, do not show that the failure to have the transcript in shape for filing and the failure to file it were due to some cause beyond the control of the appellant." Appellee also contends that, as the orders attacked were granted ex parte at the instance of appellant, they are not conclusive upon it (the appellee).
The first question to be decided is the one as to the right of this court to examine into the validity of an order granting an extension, on the ground that the cause for the extension was insufficient, where, as in the present case, no misrepresentation of fact was made to obtain the order, and the application for it was timely filed.
Article 883 of the Code of Practice provides in substance and effect, in so far as relates to the matter under inquiry, that if from some cause, not under his control, the appellant should be unable to file the transcript in this court on the day appointed by the inferior judge, or within three days thereafter, he may apply, before the expiration of said delay, either in person or by attorney, for additional time within which to bring the record up, and that additional time may be granted, if the event causing the delay be proved to the satisfaction of this court. The proof called for by this article is required to be made by affidavit showing specifically the cause for the delay. Rule 4 of this court (136 La. p. ix).
Appellee, after citing the foregoing article and rule 4, says that the law is clearly to the effect that an ex parte order of extension, granted at the instance of an appellant, is *Page 731 neither binding nor conclusive; and hence, if it be shown that such order was in fact improperly entered, the showing being insufficient, the authorities are to the effect that it is not only the privilege but the duty of the court, when the situation is called to its attention by an appropriate motion, to set aside the order improperly rendered, and to dismiss the appeal. Appellee cites in support of its position Succession of Kuntz. 33 La. Ann. 30; Chrétien v. Poincy, 33 La. Ann. 131; and Ærtling v. Commonwealth Bonding Casualty Co., 134 La. 26, 63 So. 611.
In the Succession of Kuntz, a motion was made to rescind an order, granting an extension, and to dismiss the appeal. The motion, however, unlike the present one, challenged the correctness, in a material respect, of the affidavit, showing the cause for the delay. The court found that the order was based on a cause which did not exist, and therefore that the order of extension was wrongfully obtained, and hence rescinded the order and dismissed the appeal. In the Sterling Case inquiry was apparently made into the sufficiency of the cause alleged for the delay; but in that case the right was expressly reserved to the appellees, in the order granting the extension, to move for the dismissal of the appeal, which reservation the court mentioned prominently, and therefore apparently stressed, in its opinion. In the Ærtling Case, while the ruling was to the effect that the order granting the extension would not be considered as binding yet it appears from the opinion that the affidavit showing the cause for the delay in filing the transcript was made in such a manner as to make the affidavit misleading, by failing to show what the court, in passing upon the motion to dismiss, thought was probably the real cause for the delay. Therefore the case in principle is not unlike the Succession of Kuntz, cited supra. In the Poincy Case the court inadvertently granted an order of extension upon an application filed after the *Page 732 expiration of the return day; and therefore properly set aside the order, for, the moment the return day expired, with no application either before the court for the extension of the return day, or with no such application granted, the right of appeal ceased to exist, and the court was powerless to revive it.
The foregoing cases are authority for rescinding an order of extension, where the application for the extension was not timely made, or, if timely made, where the affidavit showing the cause for the delay does not state the true cause, and the court is thereby misled into granting an extension for a cause which did not exist, or where the right to move for the rescission of the order is expressly reserved in the order itself. They should not be extended, however, to include cases where the applications have been timely made, and where the truth of the causes alleged for the extension are not challenged, and there has been no reservation of the right to attack the order. In such cases, in our view, the article of the Code of Practice, cited supra, contemplates that, when the court acts on the application, although it acts ex parte, its action is final, and the order granted cannot be rescinded and the appeal thereby defeated. The finality of such orders the Legislature may properly have had in view, for in granting them the court is merely extending the time within which to file the transcript in order to protect the right of appeal.
It is therefore ordered that the motion to vacate said orders and to dismiss this appeal be overruled.
On the Merits.