Traverso v. Row

Martin, J., delivered the opinion of the court. This is an action of partition, in which the plaintiffs had judgment, and the defendants appealed. The dismissal of the appealed is prayed for, on the grounds that the record was not brought up on the return day, and that all the plaintiffs were not made parties to the appeal. It was made returnable on the third Monday of January, being the 16th day of that month, and the record was filed on the following- Wednesday, . ° J 3 being the 18th of the same month. On the 19th, the day following, the motion to dismiss was filed. The Code of Practice, article 589, gives to the appellee, when the record has not been brought up on the return day, the right of obtaining, three days thereafter, the certificate of the clerk, that the transcript has not been filed, or to bring up the record himself, and obtain judgment on the dismissal of the appeal, in the same manner as if the transcript had been brought up by the appellant. But if the ap-pellee wait until the transcript be actually filed, although it may not be brought up until after the lapse of three judicial days from the return day, he cannot avail himself of any advantage resulting from its not being filed in due time. A judgment of partition cannot be amended or altered on an appeal, except, contradictorily with all the parties interested and to the original suit. If the appellant wishes to withdraw his appeal, he must do it on motion to the court a quo, before he has the appellee cited in. As the clerk’s certificate must state that the transcript has not been brought up, not that it was not brought up in due time, it follows that the appellee cannot have this .certificate after the transcript has been actually filed; and as in courts of original jurisdiction, the plaintiffs’ right to take judgment by default, on the failure of the defendant to answer in due time,.is destroyed by an answer filed thereafter, but before the right be exercised, it seems to follow that if the appellee wishes to avail himself of the neglect of the appellant in filing the transcript'on the return day, he should exercise his right immediately, and not to wait until the' transcript be actually filed. We think the laches of the appellant, in this particular, were caused by his posterior filing of the transcript on the day preceding’that on which the appellee sought to avail himself of these laches. As in a judgment of partition, the judgment cannot be amended in favor of either of the parties, without being disturbed in what concerns the others, it follows, that it cannot be touched except contradictorily with all the rest, therefore as all the parties to the judgment are not before us, it follows, we cannot inquire into its correctness. If the appellant wished to avail himself of the article "595 ‘ of the Code of Practice, he' should have done so in the Court of Probates. ' Nothing authorizes us to remand the case to that court for further citation, as suggested. The appeal, therefore must be dismissed.