On Application poe Reheaeing.
Bermudez, C. J.
In consequence of the earnestness with which appellant’s counsel press us for a rehearing, we feel much regret at our inability to grant the relief sought.
This is clearly a contest involving directly a right of office.
The plaintiff is the incumbent, and enjoins the defendant, who pretends that he is entitled to exercise the same official functions which the plaintiff fulfills.
The plaintiff holds under a commission from the Executive. The defendant claims under an election from a-police jury. They both in*694sist that they have exclusive rights to the same official privileges and duties. The only difference is, that the sphere within which the plaintiff alleges that he is authorized to act, which is that of the precincts of the Slaughtor-I-Iouse Company, is in point of area less comprehensive than that over which the defendant avers that he has jurisdiction, which is the territory of the parish of St. Bernard, within which the said precincts are established. The plaintiff’s pretensions are for the exorcise of functions within an area which excludes that claimed by the defendant, while those of the defendant are for a similar exercise, within an area which includes that over which plaintiff claims to have sole jurisdiction. The plaintiff may well have a right to discharge his functions within certain limits, and the defendant may well have a similar, though not identical official right, but over a different territory, beyond that to supervise which the plaintiff says he was appointed. To show that it is a contest for an office, the best test is, perhaps, that each claims to be entitled officially, — the one to the exclusion of the other, — to the same rights and duties, particularly the 'emoluments arising from the same source. The plaintiff, who is in office, enjoins the defendant to keep him out of that office as far as their pretensions conflict. The defendant, who is out of office, litigates to put plaintiff out and to put himself in office. A clearer case involving a right of office cannot easily be conceived. The parties have treated, by their pleadings and their other acts, this suit as one involving a right of office. We cannot see by what authority we can discountenance proceedings not reprobated by law and which are susceptible of accomplishing the object which the parties had in view:— an adjustment of their respective differences. This was done by the final judgment of the lower court.
Dissatisfied with the finding of the lower court, the defendant has appealed suspensively from it. A motion to dismiss the appeal was made and sustained. The ruling was based on the consideration that this being a suit in which a right to office is involved, the appeal should havo been made returnable within ton days after judgment, and that it was made returnable after that period. We were therefore prevented from inquiring into the merits of the controversy. We much regretted it, but we cannot say that had we done so the appellant would have derived any benefit from the reversal.
The appeal was made returnable on the day suggested in the petition •of appeal, which was an improper day, as it was beyond the ten days •following judgment, which is the period within which the appeal should have been returned.
This was an error, assuredly. If so, it was attributable to some one. 'To whom, then ? It cannot but be to the party who caused it. Who that party is, is a question which strictly need not be answered, for it is *695self-evident. The error is imputable to tlie appellant, and not to the judge, who granted, ipsissimis verbis, the prayer of the petition in which the return-day is expressly suggested.
Our attention is called to the ruling in Ohaffe vs. Heyner, 31 A. 595, in which relief was granted to an appellant whose appeal was sought to be dismissed because by.the order on the motion of appeal, which was drawn up entirely by appellant’s counsel and adopted by the District Judge, an improper return-day was assigned. This court held that “an order of court, whether written by the attorney of ono of the litigants or by the clerk, is the act of the judge.” * * i:‘ “ It was the judge who made the order of appeal, who named an improper day for its return, and the defendant cannot be prejudiced.” This ruling has our unequivocal indorsement, and it is therefore unreservedly affirmed. It was made because the appellant had not suggested the return-day designated by the judge. Had he done so in the body of the motion in which he averred his complaint and which forms no part of the order of' appeal, to which it serves as a basis, the court would not have ruled as it did. An inspection of the motion itself shows that no suggestion whatever of the return-day was made by the appellant. The jurisprudence is settled that where the appellant suggests an improper return-day, which is adopted by the judge, it is an error which is imputable to him, and not to the judge, and which will justify the dismissal of the appeal.
In 10 A. 779, in which a motion was made, the court said:
“ The motion was made verbally and as it was the duty of the judge in granting the appeal to fix the return-day, in accordance with the law and tho rights of the appellee, and as there is nothing to show that the appellant suggested any particular return-day, we must consider the order of appeal as the act of the judge.” * * * Trimble vs. Brichta, 10 A. 779.
In 26 A. 747, the proceeding was by petition praying that the appeal bo returnable on the next return-day, for trials of appeals from the parish of Iberville, which was then the ninth of February, 1874. The court held that it was an improper return-day, and dismissed the appeal, saying:
“ The fault lies with the appellants, as they prayed that their appeal be made ‘ returnable to the Supremo Court of Louisiana, at the next regular term for appeals from the Fifth Judicial District of Louisiana.’ The application for an appeal was made in writing, and the time fixed for the return thereof by the judge, was the day asked for by the appellants. If they erred, the error is their own.” The court cited with approval 10 A. 778, and 8 La. 220,12 La. 480, 483.
The appellant’s counsel invites our attention to affidavits annexed to the petition for a rehearing, but we have not considered them.
*696T]io grounds of complaint in the petition, in so far as facts are involved, must be verified by evidence in the transcript, and not by ex parte testimony of matters in pais, particularly in a case where no proof is admissible at all.
The petition for a rehearing is refused with costs.