On Motion to Dismiss.
NICHOLLS, J.The appellee moves to dismiss the appeal taken in this case on the ground that the transcript herein was not lodged in this court within the time fixed by law, and that the delay is attributable to the defendant and appellant, and operates to the prejudice of the plaintiff and appellee.
The judgment appealed from was rendered on the 17th of July and signed on the 23d of July, 1908. The order of appeal granted the defendant was signed on August 3, 1908; and bond was given on the same day. The order of appeal made the same returnable on the *621first Monday of October, 1908. The transcript of appeal was filed in the Supreme Court on October 5, 1908, which was the day fixed by law for the opening of the next ensuing term of court and the return day designated by the court’s order.
Appellant concedes that the district judge should have fixed, under Act No. 106 of 1908, the return day for this appeal for a day not less than 15 nor more than 60 days from the date of the order of appeal, and not for the first Monday of October, 1908, as he did, that date being more than 60 days from the order of appeal, but he urges that the fixing of the date of the return day was not his act, was not imputable to him, and under article 898 of the Code of Practice the appeal should not have been dismissed. The facts of this case save the appeal from dismissal under the provisions of that article. See Hodge v. Monroe Mercantile Co., 105 La. 668, 30 South. 142. The motion to dismiss is denied and the appeal is maintained.