Heirs of Hoover v. York

On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

The motion contains the following grounds :

1. That defendant abandoned his first appeal, and could not legally take a second appeal.

2. That the transcript of appeal Was not seasonably filed.

First. The first appeal taken by plaintiffs was made returnable to this Court on the second Monday of February, 1881, the return day fixed for appeals from the Parish of Concordia, where the ease was tried. The transcript was filed at that term of this Court, but dismissed on motion of the appellee, on account of a defective transcript. The appeal was devolutive, and within the year from the date of the original order granting the appeal, the plaintiifs applied for and obtained a second appeal.

It is contended that' the failure of the Appellants to perfect their first appeal and its consequent dismissal, showed an abandonment of the appeal, and should be so construed. We do not think so. Th© abandonment, of an appeal to debar a subsequent appeal must be a voluntary abandonment. It would be a forced construction of the law on the subject to hold that an irregularity in bringing up an appeal, even though it resulted from an error or fault on the part of the appellant, constituted a voluntary abandonment of his appeal, express or constructive. This is negatived by the fact that, upon the dismissal of the appeal, the appellants proceeded to take and prosecute another. The second appeal, being taken within the year prescribed for devolutive appeals, was in time.

Second. The second appeal, the present one, was made returnable on the second Monday of February, 1882. At that term of Court and ■within the legal delays the appellants applied for an extension of time, which was granted, quoting from the order, “ until the next term of this Court sitting for the trials of appeals from the Parish of Concordia.”

The first day of that term was the 12th of February, 1883. The transcript was filed on the 14th, and we think in time. It was within the term. A fair construction of this word “ term,” which the extension covered, would be the time within which an appeal so returnable could be filed, and would include the return day and the three subsequent days of grace.

An appeal should not be dismissed unless the right thereto has been clearly forfeited, and in case of doubt, the appellant should have the benefit of it and the appeal maintained.

We have been pointed to no authority that would justify the dismissal of the appeal on either ground urged. The motion to dismiss is therefore overruled.