Palfrey v. Winter

Bullard, J., delivered the opinion of the court. The appellee moves the dismissal of the appeal in this case, on the ground that the transcript was not filed in this court on the return day, nor within the three judicial days afterwards. The appeal was made returnable on the third Monday of January, and the transcript was not filed until ^he secon(I day of February. It has been settled, by several decisions of this court, that a transcript may be filed within three judicial days after the return day. 5 Martin, N. S., 191. 7 La. Reports, 350. Within the three days of grace, the appellant may obtain further time, on showing cause. On the expiration of the three days, the appellee has a right to a certificate from the . A ° clerk, that the appeal has not been prosecuted, ana to proceed to the execution of the judgment below, or to procure dismissal of the appeal, on filing a transcript. It appears to us, the appellee cannot be legally deprived of his right, by the act of the appellant, after the expiration of the three days, without permission of the court. It is true, the Code requires that the appellee who wishes to move for a dismissal of the appeal, in such cases, should bring up the transcript. In this case, the transcript is already before us. The appellee was cited to appear in this court on the third Monday of January, and the record was not brought here until the commencement of the succeeding term, without any application to the court for further time, or any cause shown; and we are of opinion that the appellee is not bound to angwer Jn the case of Griffith et al. vs. Minor, 7 Louisiana Reports, 350, it was intimated, though not decided, with reference to hhng an appeal, that as a general rule, when an act is to be done within a given time, as the filing an answer and the . . . „ , ,, . like, it may be done afterwards, if nothing occurs to prevent [207] it. We are now satisfied that the rule does not apply to the bringing up of a transcript of appeal. It is, therefore, ordered, that the appeal be dismissed, at at the cost of the appellant.