On Motion to Dismiss.-
The opinion of the Court was delivered by
Bermudez, C. J.Not one of the reasons assigned for the dismissal of this appeal is founded on fact or law.
. I.
The first ground is: that the appeal is devohitive, and the defendants have not been cited to answer it.
The motion of the district attorney was for a suspensive appeal, and the court ordered that a suspensive appeal be granted. R. pp. 26,44,45.
II.
The second ground is: that the appeal was moved for and granted after defendants were discharged and their bonds cancelled and the judgment acquiesced in by the State.
There is nothing in the record to show that the accused were discharged and their bonds cancelled before the appeal was asked by the State, or that the judgment was acquiesced in by the State.
The motion on this ground is not even sworn to, so that the averment rests for proof only on the ipse dixit of each defendant.
*855The record shows that as soon as the district judge rendered the judgment quashing the indictment and ordering the release of the accused, and cancelling their bonds, the State not only applied for a suspensive appeal, but took a bill of exception.
The State conld not have appealed before the judgment was rendered, or excepted before the ruling had been made.
The protest of the State by appeal and bill repels the charge of acquiescence, even if it could stand without proof.
III.
The third ground is:, that the appeal is not made returnable in ten days, according to law.
The State, through her representative, the district attorney, prayed for a suspensive appeal----to this Court____“returnable according to law,” without suggesting or fixing any return day. E. pp. 26-7.
The district judge allowed the appeal returnable to this Court on the first Monday of November, 1885. E. pp. 26-7, 45.
It may be that the judge ought to have made the appeal returnable either at Monroe, Opelousas, or Shreveport, as the judgment was rendered May 13th, and this Court, then sitting in New Orleans, was soon to adjourn there, and that he was wrong in making it returnable here on the first Monday of November following; but the State is not chargeable with the action of the court. The State did all she was expected to do and no fault is attributable to her. This has been frequently held not to be a sufficient ground of dismissal.
IV.
The last ground is: that the transcript of appeal was not filed in this Court within ten days from the granting of the appeal.
The transcript was filed, not after, but long before the return day, namely: June 30,1885, when it might hare been filed here only on the 2d of November following. The transcript was surely in the clerk’s office on that day.
The accused have no cause of complaint.
Motion to dismiss overruled.