I concede that, if an attorney misrepresents or conceals the facts in order to obtain an extension of the time allowed for the filing of a transcript of appeal, the appellee ought to have an opportunity to show the facts and have the order of extension rescinded. Oertling v. Commonwealth Bonding Casualty Co.,134 La. 26, 63 So. 611. If there were any suggestion that the attorneys for the appellant in this case misrepresented or concealed the facts, in obtaining the order of extension, the appellee would be entitled to an order remanding the case for the purpose of receiving evidence on the subject, and to determine whose fault it was that the clerk of court could not make up the transcript within the time allowed originally. But, even when there is a suggestion of misrepresentation or concealment of the facts in that respect, the appeal should not be dismissed without allowing the appellant an opportunity to be heard. In this case, I do not consider that the attorneys for the appellant were guilty of any neglect in taking a month and seventeen days to file a bond for a devolutive appeal. The law allows a year for the taking of a devolutive appeal. The defendant in this case might have asked for a suspensive appeal only, within the ten days allowed by law, and might have waited a year before taking a devolutive *Page 872 appeal. It may be that the attorneys for the appellant have a good excuse for having failed to file an appeal bond immediately after — or soon after — the judge granted the appeal. The judge did not grant the appeal immediately when the petition was presented to him, but took seven days in which to perform the perfunctory act of granting the appeal and fixing the amount of the bond for a devolutive appeal. It may be that the attorneys for the appellant were not informed immediately when the judge granted the appeal.
The most important point in this case, however, is that the appellant or the attorneys for the appellant had no way of knowing, on or before the 25th day of August, 1936, that the typist who makes up the transcripts of appeal would not have time to make up the transcript in this case between the 25th of August and the 4th of September — or the 7th of September. The appeal was returnable on the 4th, but the law allows three days of grace. The typist, therefore, had really thirteen days in which to make up the transcript. Aside from the note of evidence, the carbon copies of which were furnished by the stenographer, the record contains only 73 pages of typewriting; and they are not all full pages. A typist having an average speed could have made this transcript in two or three days — working leisurely. In fact, it might have been done in 12 or 13 hours, or say in the 13 days, working an hour a day. I am not suggesting that typists ought to work faster or harder than they do; but it does seem to me that the attorneys for the appellant in this case were not unreasonable in allowing the clerk of court and his typist *Page 873 only 12 or 13 days in which to copy 73 typewritten pages. In the first case cited in the prevailing opinion in this case, Knox v. Yazoo M.V.R. Co., 135 La. 417, 65 So. 595, where the attorneys for the appellant lost 15 out of 21 days before filing the appeal bond, it was said that the remaining 6 days should have given the clerk ample time in which to prepare a transcript containing 30 pages — and not full pages, at that — besides "the part furnished ready-made by the stenographer."
We must bear in mind that an attorney at law, applying to the clerk of a district court to prepare a transcript of appeal, is not disposed to take issue with the clerk if he asks for more time than the attorney thinks he needs. In this case, if the attorneys for the appellant believed, previous to the 25th of August, 1936, that the clerk of court would have ample time to make up the transcript between that date and the 4th or 7th of September, there was no reason why they should state, in their petition to this court for an extension of the time, that they did not file the appeal bond until the 25th of August, 1936. Hence I do not consider that the attorneys withheld any relevant fact when they asked for the extension of the time in which to file the transcript. They had the right, therefore, to rely upon the order of this court, granting the extension. And they did rely upon it, to the extent that they paid the clerk of the district court $39.50 for making the transcript, and paid the clerk of this court the required deposit of $25 for costs.
For the reasons stated I respectfully decline to subscribe to the decree dismissing this appeal. *Page 874