Scott v. Ratcliff

On Motion to Dismiss Appeal. The plaintiff appealed from an adverse judgment by the district court to the Court of Appeal, Second Circuit. When the record was lodged in the appellate court, the appellee moved to dismiss the appeal, on the ground that the Supreme Court, and not the Court of Appeal, had appellate jurisdiction of the case. The Court of Appeal (5 La.App. 412) found his contention to be correct, but refused to dismiss the appeal, ordering, in lieu thereof, that it be transferred to this court. The Court of Appeals did not fix any delay in which the transfer should be made, and the appellee applied, subsequently, to have this done. His application was denied. After the lapse of about eight months from the date of such refusal, the appeal was lodged in this court. The appellee has moved to dismiss it here, on the ground that the transcript was not filed within a reasonable time.

The transfer of an appeal is authorized by Act 19 of 1912. The statute does not, in terms, fix a return day or prescribe a time within which the transcript must be filed in the court to which the case is transferred. It merely declares that the judges of either court shall regulate the costs incurred by the appellant and the proceedings to be had in such cases. De Brueys v. Burns,144 La. 707, 81 So. 259. Nevertheless we think it was the intention of the Legislature, in not designating, arbitrarily, the delay within which the transfer of an appeal must be effectuated, to leave that question open for determination by the appellate court transferring the case. The transfer of an appeal is not made a matter of right, but is made, largely, a matter of discretion on the part of the court to which it has been erroneously taken. The court therefore, in ordering an appeal to be transferred, may, within its sound discretion, impose upon the appellant such conditions as it sees fit. One of the conditions which the court, in allowing the transfer of an appeal, should impose upon the appellant, is a limit of time within which he should file the record in the court to which the transfer is to be made. The delay should be longer or shorter, depending upon the nature and extent of the record. To hold otherwise would be to attribute to the statute a meaning that would not only not carry out its object, but produce consequences which to the ordinary intelligence are absurd.

In the case presently before us, the Court of Appeal should have fixed a time limit within which the transcript was to be filed in this court. The remedy of the appellee, upon the court's refusal of his request to do so, was to have applied to us for the appropriate relief. But he failed to make such application. We do not think the appellant should be made to suffer for the court's action, apparently acquiesced in by the appellee. Cf. De Brueys v. Burns, referred to supra.

For the reasons assigned, the motion to dismiss the appeal is denied.

On the Merits.