Dissenting Opinion.
Fenner, J.I think we committed an error in dismissing the appeal in this case, and that a rehearing should therefore be granted.
The ground upon which the appeal was dismissed is, that it was not made returnable on the day and within the delay required by law, and that this error is imputable to the fault of appellant. If not imputable to fault of appellant or his counsel, wo clearly should not dismiss. The fault attributed to appellant’s counsel is, that he presented a petition to the court in which he prayed for an order granting the appeal and specified the day on which it should be made returnable ; and that the judge granted the order as prayed for. The counsel of appellant have filed with their application for rehearing affidavits to the effect that, although in the prayer of their petition, as presented in the record, it does appear that the return-day is included, yet that in their petition as presented to the judge, said day was loft blank and was filled in by another than themselves, under the direction of the judge in granting' his order. Recognizing the common custom that prevails in practice, of presenting petitions praying for orders, leaving therein blanks to be filled by direction of the judge in granting the order ; and considering that we are passing upon a question of fault on the part of practicing attorneys of the court, I think they should be permitted to explain apparent fault in a case of this kind, and that the affidavits should be considered.
But even excluding the affidavits, I think the case is fully covered by the recent decision in Chaffe vs. Heyner, 31 An. 595. There it was “alleged that the defect (in the return-day) was imputable to the appellant, because the motion is written by his attorney, and the day is fixed therein, and the judge merely adopted the day as thus fixed.” But the court said : “An order of court, whether written by the attorney of one of the litigants or by the clerk, is the act of the judge. * * It was the judge who made the order of appeal, and who named an improper day for its return, and the appellant cannot be prejudiced by his act.” I am utterly unable to appreciate the difference in fault between the attorney who presents to a court a motion of appeal with an order fixing the return on a day therein written out and asks the court to grant it,. *697and him who presents a petition of appeal similarly framed. They seem to me to stand in the same case.
In either ease, the judge, in making his order, is exercising a judicial function, and it cannot be assumed that he is influenced by the request of the attorney, or would have made a different order, had the attorney asked him so to do. The case might be different if the action of the attorney misled the judge on a question of fact, as in 26 An. 747, where the attorney asked for the usual return-day, without informing the court that the appellee resided at such a distance that the return-day would pass before the delays of citation would expire.
If this had not been a question affecting the conduct of officers of the court, I should not have thought it necessary to express my reasons for dissent on the mere refusal of a rehearing.