William D. Seymour & Co. v. Castell

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

On Motion to Dismiss. On July 31, 1925, one of the defendants herein was allowed asuspensive appeal, returnable to this court on September 28th.

On September 28th he obtained an extension of the return day to October 28th.

On October 29th he filed the transcript of appeal in this court.

On October 31st appellee moved to dismiss the appeal on the ground that the transcript had been filed (one day) too late.

I. In Landry v. Le Boeuf Sons, 153 La. 31, 95 So. 391, this court said:

"It is well settled that the three days of grace allowed for the filing of a transcript of appeal, or for obtaining an extension or postponement of the return day, do not apply again when the return day has once been extended or postponed" — citing numerous authorities.

This was a case in which the delay was due apparently to the negligence of a railway express company in not forwarding the transcript in time. But the fact that the delay might be attributable to the express company availed the appellant nothing; it being held that it was the duty of the appellanthimself to see that the transcript reached this court on or before the expiration of the delay in which to file it.

II. In Terry Construction Co. v. James K. Sutherlin Co.,145 La. 397, 82 So. 384, this court said:

"When the time for filing a transcript is extended by order of this court, the transcript must be filed on or before the expiration of the delay so granted, unless, within such delay, an order granting further delay is applied for and obtained. It is too late thereafter to apply for such [further] extension. The motion todismiss, in such case, may be filed at any time" — citing authorities.

Decree. The suspensive appeal herein taken is therefore dismissed.

On the Merits.