On Motion to Dismiss.
BREAUX, O. J.The grounds of the motion are that there is no order of appeal, and that if there is such an order it is absolutely defective by reason of the fact that it was made returnable on the first Monday of February, 1907; that it should have been made returnable on the third Monday of January, 1907; that it was not suggested to the court, and that no order of the court was issued, showing that a later return day was necessary in order to enable the clerk to complete the transcript in time; that the record of the lower court will show that the return day fixed is the act of plaintiffs’ counsel.
One of the counsel for appellant, by whom the petition for the appeal is written, and who presented it to the judge of the district court, took an oath that when he presented the motion for an order of appeal the amount of the bond and the return day for the appeal was left in blank, and that on presenting his petition he asked the judge to fix the amount of the bond, at the same time re^ marked to him that it was Friday, and that there would be only one-half day intervening before the third Monday of January, which was the 21st, and that immediately thereafter the judge fixed the amount of the bond and the return day and directed counsel to fill the blank with the amount of the bond for an appeal and with the date of the return day as fixed by the judge; that he immediately thereafter handed the order and the motion to the minute clerk, to be entered on the minutes.
Taking up the first ground, it is evident that there was an order of appeal. The minutes show that the order of appeal was allowed. The order, which is copied in the transcript, showing that the judge granted the appeal and fixed the amount of the bond, is a part of the minutes of the ease. It is a copy of the minutes, and as such sufficiently indicates that there was an order of appeal.
The minutes of the court are prima facie proof of the court’s proceedings.
The statement before us is that the court granted the order of appeal and fixed the amount of the bond.
The second ground; that is, that the appeal was not made returnable on a proper day: The facts sworn to by counsel, the correctness of which are not questioned, amply prove that the order of appeal and the amount of the bond were fixed in accordance with the order of the court and under the immediate direction of the court. For good reasons the appeal was made returnable for a day mentioned in February. Had it been made returnable on the first date, it is evident that the clerk of the court would not have had time to prepare the transcript, as there was less than one day intervening.
If there was error, it was the error of the judge, and not one fatal to the appeal.
The motion for the appeal was made in open court, and the return day fixed. “Such an order, although made in compliance with the motion of the appellant’s attorney, was the act of the court, and hence /the error of it was not imputable to the appellant.” Chaffe v. Heyner, 31 La. Ann. 594.
It is not ground to dismiss the appeal if the return day was fixed by the court. Chaffe v. Heyner, 31 La. Ann. 594; State v. Dellwood, 33 La. Ann. 1229; Bartoli v. Huguenard, 39 La. Ann. 411, 2 South. 196, 6 South. 30; Orleans & Jefferson R. R. Co. v. International Construction Co., 113 La. 409, 37 South. 10; Pearce v. State ex rel. Dist. Attorney, 49 La. Ann. 643, 21 South. 737.
The motion to dismiss is overruled.