Succession of Bickham

OTT, Judge. The opponent, Cassie Daniels Butler, took an appeal from a judgment which dismissed her opposition to the final account of the administrator. The appeal was made returnable to this court on July 25, 1939, and the appeal bond was filecl and the filing fee for the appeal was deposited with the district clerk before the return day of the appeal. The transcript was not filed in this court until September 12, 1939, more than a month after the return date. A motion has been filed in this court to dismiss the appeal for failure to file the transcript in time. Considerable confusion has arisen on the question as to the dismissal of an appeal in the courts of appeal for a failure to file the transcript on or before the return date, or within the usual three days of grace. This confusion has arisen from the apparent conflict in the rules and decisions of the courts of appeal. This confusion and conflict is discussed at length in the case of Woodward v. Blair et al., 197 So. 920, this day decided by us, and it is unnecessary to repeat here what is said in that case. Rule 3 of this court relative to filing of transcripts of appeal (printed in the back of 11 La.App. following page 768) requires the appellant to cause the transcript to be filed with the clerk of this court within the time fixed for the return of the appeal. .This rule was adopted in accordance with Articles 587 and 588 of the Code of Practice, which place the responsibility for filing the transcript in the appellate court on the appellant, and declare what course the appellee may pursue in case the appellant fails to file the transcript within the time fixed for the return of the appeal. The Supreme Court of the State has consistently held that where an appeal has been taken and a bond filed the failure of the appellant to file the transcript on or before the return date constitutes an abandonment of the appeal. Article 7, Section 27, of the Constitution provides that all cases on appeal to the courts of appeal shall be tried on the original record, pleadings and evidence, and the rules of practice regulating appeals to and proceedings in the Supreme Court shall apply to appeals and proceedings in the Courts of Appeal, so far as they may be applicable, until otherwise provided. Act 32 of 1910, Dart’s Stat. § 1333, requires the district clerks throughout the State (Parish of Orleans excepted) to transmit to the clerk of the court of appeal the deposit made with them for the cost of the appeal, together with the record in the appeal case. And Act 89 of 1914, Dart’s Stat. § 1446, places the custody, handling and transmission of the records in cases argued and submitted in this court in the hands of the district clerks and the clerk serving as such for this court. From these constitutional and statutory provisions it has been determined that the custody of the original record and its filing in the court of appeal rests with and is the responsibility of the clerk of the district court. Stockbridge v. Martin et al., 162 La. 601, 110 So. 828; Vinyard v. Stassi, La.App., 152 So. 161; Twin City Motor Co., Inc. v. Pettit et al., La.App., 177 So. 814. In order to clarify this matter and with the view of adopting a rule for this court to follow in passing on this motion and all subsequent motions to dismiss the appeal based on a failure to file the original record in this court on or before the return date, we now make the following decision and lay down the following rule: Where the appellant secures an order of appeal, files his bond and deposits the necessary filing fee for the appeal with the clerk of the district court from which the appeal is taken, it then becomes the duty of the clerk of the district court to transmit the original record in the case, together with a part of the filing fee, to the clerk of the court of appeal, and in the absence of some showing to the effect that a failure to file the transcript in time is due to some fault on the part of the appellant or his attorney, the appeal will not be dismissed for a failure of the clerk of the district court to file the transcript on or before the return day of the appeal. As there is nothing to show that the failure to file the transcript on the *926 return date in this case was due to any fault of the appellant or his attorney, in accordance with the above rule, we must and do hereby overrule the motion to dismiss the appeal in this case.