Twin City Motor Co. v. Pettit

[815] TALIAFERRO, Judge. Plaintiff proceeded via ordinaria to foreclose a mortgage and vendor’s lien given by-defendants, Weldon M. Pettit, Jr., and L. B. Pettit, to secure payment of the purchase price note, with interest and attorney’s fee, of a sale to them of a used Plymouth sedan. The note is for $412.20, including carrying charges, and is payable in twelve monthly installments of $34.35 each, beginning April 2, 1936. The three installments first maturing were promptly paid. The sale was in reality made to Weldon M. Pettit, Jr. L. B. Pettit joined in the mortgage and act of sale as an accommodation to him, and signed the note as an inducement to plaintiff to make the sale without any down cash payment. Defendants seek to escape liability on the note because of alleged redhibitory vices in the car when, purchased. They aver that the car’s condition was so defective and imperfect as to be absolutely useless for the purposes for which acquired, and that had these (latent) vices been known to them it would not have been bought. The specific vices and defects alleged upon are: Excessive consumption of oil and gas; and, while operating the car, replacing of broken axle, ignition switch, spark plugs and brake-drums, relining brakes; repairing transmission, drag link and generator. They further aver: “ * * * That the reason that car is useless is that the cylinders of said car need reboring and overhauling, and that a new and complete transmission is needed in said car, and that the connection rods are burned out and need replacing, and a new and complete engine is needed.” It is also charged that to deceive and to falsely represent the mileage the car had previously been driven, plaintiff manipulated its speedometer, which fact, if it had been known to defendants, would have influenced them against making the purchase. For all of said reasons and causes defendants pray that the sale of the car be rescinded in toto and that they, have judgment against plaintiff in reconvention, absolving them from any liability on the note sued on, and for judgment for the amounts paid thereon. From judgment for the defendants, as by them prayed for, plaintiff prosecutes this appeal. Appellees move to dismiss the appeal on these grounds: (1) That the record was lodged here after the return day; and (2) that the appeal bond is defective in that surety thereon is not justified as required by law. Since the motion to dismiss was filed, appellant filed in this court affidavits of the principal and surety on the appeal bond in the form required by sections 2 and 4 of Act No. 112 of 1916. This is sufficient to the efficacy of the bond and to maintain the appeal. Judgment was signed in this case and the order of appeal entered on January 6, 1937. The return day was fixed for February 15th. Suspensive appeal bond was approved by the clerk of eburt and filed January 15th. The deposit fee of $5 was received by the clerk of this court on the 6th day of July. The record arrived and was filed on July 19th. Appellant, in written reply to the motion to dismiss, says: “Respondent shows that it did all within its power to discharge every duty and obligation in order ■ to properly perfect and preserve the appeal to this court, and that respondent believed .that the appeal had been properly lodged before the return day until the attorney representing respondent consulted the Clerk of this court during its last regular session of court in Monroe and thereby ascertained that the transcript had not been submitted by the Clerk of the District Court to the Clerk of the Court of Appeal. Respondent, further shows that upon ascertaining said facts it immediately requested the Clerk of the District Court to transmit said record to the Clerk of the Court of Appeal that it might be regularly filed herein.” In oral argument, appellant’s counsel stated that the reason the transcript was not promptly filed here was due to the fact that the clerk of the district court had overlooked the filing of the appeal bond. The truth of the facts alleged and reasons assigned for the tardy filing of the record here are not denied by appellee’s counsel, and will be accepted by us as true for the purpose of disposing of the motion. It is not the duly of an appellant to personally see to it that the record is filed in a Court of Appeal before the expiration of the return day or within three days thereafter. That duty attaches to the clerk of the trial court, who is custodian of the original papers making up the record. His failure of duty in this respect for any reason is not imputable to the appellant. This is definitely held in the case of Stockbridge v. Martin, 162 La. 601, 110 So. 828. The [816] syllabus in that case anent this question reads: “Where appellant in tax sale annulment suit directed district court clerk to transmit transcript to Court of Appeal within return day, clerk’s omission to so transmit for two years held not ascribable to appellant to cause appeal’s dismissal, appellant having' no legal remedy to force clerk to transmit record before expiration of return day.” In effect, the failure of the clerk of court to file the record in the Court of Appeal on or before the return day, or within three days thereafter, automatically extends the return day until the record is actually filed. The filing fee due by appellant need not be paid to the clerk of this Court of Appeal in advance of the arrival of the record, but must be paid as a condition precedent to the filing of the record. Rule 3; see Danna v. Yazoo & Mississippi Valley Railroad Company, La.App., 154 So. 365. And in the present case, the filing fee having been deposited prior to lodging the record here, we deem it to have been timely paid. Appellee cites and relies upon Gazzo v. Bisso Ferry Company, Inc., 174 So. 132, decided by the Orleans Court of Appeal. That case does sustain appellee’s position, but it is diametrically opposed to the Stock-bridge Case.