Hillard v. Taylor

On Motion to Dismiss. NICHOLLS, J. The appellants in this case •obtained on the 30th of June, 1904, an order of appeal (suspensive or devolutive) from the judgment rendered against them on the 29th of June, 1904. This appeal was made returnable to the Supreme Court on the first Monday of November, 1904, conditioned on their furnishing bond in the sum of $250 for. a devolutive appeal. They executed a bond for a devolutive appeal on the 27th of October, 1904. On the 7th of November, 1904, on motion ■of the counsel of appellants, and on their filing with said motion an affidavit of the clerk of the trial court, this court ordered that the return day for filing the transcript ■of appeal be extended to the third Monday of November, 1904. On the 21st of November, 1904, on motion of appellants’ counsel, accompanied by an affidavit of the clerk of the trial court, the return day for filing the transcript of appeal in, the Supreme Court was extended to the 28th of November, 1904. In the first affidavit of the clerk of court, sworn to on the 7th of November, he deposed that the transcript of appeal had not been completed, for the reason that there had not been sufficient time to complete same since the appeal bond was filed, on October 28, 1904, and that an additional delay until the third Monday of November, 1904, was necessary to enable him to complete the same. In the second affidavit of the clerk, sworn to on the 21st of November, 1904, he deposed that, since his affidavit of November 7th was made, he had not been able to complete the transcript, for the reason that there had not been sufficient time to complete the transcript, and that an additional delay of seven days from the 21st,of November was necessary to enable him to complete the same. In the final application for an extension of time made by appellants on the 7th of November (the return day for the appeal), counsel stated that the “delay in filing appeal bond was caused by a pending compromise in the matter.” The transcript in the case was filed on the 28th of November, 1904. On the 1st of December, 1904, the plaintiff filed a motion to dismiss the appeal on the ground that the affidavit of the clerk of the civil district court, sworn to on the 7th November, 1904, was not sufficient to warrant the granting of additional time; the clerk certifying that “there had not been sufficient time to complete the transcript since the appeal bond was filed, on the 28th of December, 1904.” Mover suggests to the court that the delay of “interveners and appellants in filing the bond of appeal cannot be urged as an excuse for the failure to file the transcript on the return day fixed, viz., for the first Monday of November, 1904, and the certificate of the clerk of the court setting forth the reasons why the transcript of appeal was not ready to be filed on the said return day was not sufficient to warrant an extension of time.” In the brief filed in support of the motion to dismiss, counsel contend that the failure of the appellants to file their bond of appeal in time for the clerk of court to commence to finish the transcript on or before the return day was a fault imputable to the appellants, as it was apparent that the clerk [887] had had ample time from June 30th until the third Monday in November (21st November)- — a period of 122 working days — to complete the transcript, consisting of only 62 pages, excluding the testimony which was included therein. He maintains that appellants had not used due diligence in filing the appeal bond, and had not, on the face of the record, shown an excuse or reason for such unusual delay. Her counsel refer the court to Samuels v. Brownlee, 38 La. Ann. 34, and Chaffe v. Mackenzie, 43 La. Ann. 1062, 10 South. 369. Counsel of appellants first claim that plaintiff’s motion to dismiss was grounded on the insufficiency of the clerk’s certificate as authorizing an extension of time, while the argument in his brief rests his motion upon an alleged fault imputable to the appellants, viz., that they had not filed the appeal bond in time to enable the clerk to make out the transcript before the return day. Appellants admit that it is true there was a, delay from June 30th to 28th October, 1904, in filing the appeal bond, but the cause or reason for the delay was set forth in the body of the motion, asking for an extension “as being a pending compromise of the case.” Counsel say in their brief: “This is not denied, nor can it be denied, by the appellee. After the order of appeal was entered, within a week of that date, a proposition of compromise was made to these appellants ; a written agreement drawn up and signed by them to compromise for a certain sum, delivered to the counsel for appellee, and by him forwarded to his principal for approval; a statement subsequently to appellants’ counsel by appellee’s counsel that appellee had been run over by a street car, and was in a hospital, unable to transact any business, with a request for delay until appellee could recover sufficiently to take the matter up; a continued waiting for a reply from appellee to his counsel (which reply has not yet been received) until a day or two before the filing of the appeal bond, when appellants’ counsel were finally notified that appellee’s counsel could get no answer from his client. All of these facts were stated to your honors in open court by appellants’ counsel when applying for the first extension. None of these facts (which are included in the statement ‘a pending compromise’) can be denied by appellee. And can a litigant induce his adversary to delay action by asking time to consider and act upon a compromise, and then make that delay a ground for dismissing that adversary without a hearing, especially when no law, rule of court, or of practice has been violated, nor any substantial or imaginary injury inflicted upon appellants ?- We rely upon the well-settled principle that the-law favors compromises, and will not permit an effort to compromise, made in good faith, to be-used as the basis of an attempt to take advantage of a party, which principle is too welt settled to need the citation of authorities to support it.” Appellants insist that even if appellee was correct, and. he could take advantage of this proposition to compromise, and the delay caused thereby, to file his motion, the motion to dismiss should be dismissed on the-naked facts as shown by the record. They then proceed to enumerate what particular-documents were necessary to have been copied in the transcript, stating that the whole-transcript did not exceed 31 pages; and they submit that 12 days was ample time within which the clerk could have made out the transcript, had he not been able to do so for some reason in his office over which appellants had no control, and which could not be a, fault imputable to them. Counsel say: “The law does not require us to know the condition of the work in the clerk’s office — the number of men he keeps employed there to make-transcripts — and to guide ourselves by those-facts in taking, or, rather, perfecting, our appeal. We submit that all that is required of us-is that we should give our order, or, in this case, file our bond, long enough before the return day to enable the work to be done if it is. taken up and carried on as soon as the bond is filed. This we have done. When we were notified by the clerk that the transcript could not be completed before the return day, we took the-steps that the law and the rules of court point out to have the return day extended; and,, when the clerk notified us a second time that he would need still more time, we again took the-same steps. We cite the court to this second application, and the affidavit of the clerk thereto attached, to show that it was not our fault, but that the delay was occasioned by something within the office of the clerk, which we judge to-be the fact that there happened to be at that time more work in his office than the usual force could handle. We submit to the court that alt that it is incumbent upon us to do — to give the clerk time in which to do our work, without reference to whether he may have work for others at the same time — has been done by us, and that the fact that there were other transcripts. [889] to make out at the time is not our fault. If that were the rule, then the rights of a litigant would ■depend not upon his acts or that of his counsel, but upon the question of how many other litigants there were, and whether or not they were taking appeals in their cases. If there had been no other transcripts to make in the ■clerk’s office at the time we filed our bond (October 28, 1904), we would have had our transcript in time, and the appellee could not have made this motion. There happened to be other transcripts at the time. Can that be imputed to appellants?” “In conclusion, at best, the appellee has presented but a doubtful ground for dismissing this appeal. ‘When the ground for dismissal is doubtful, the appeal will be maintained.’ Guion v. Creditors of Succession of Guion, 19 La. Ann. 81; Planters’ Bank v. Bass, 2 La. Ann. 434; Brickell v. Conner, 10 La. Ann. 235. “We submit that the motion to dismiss should be denied.” The court was advised by the appellants at the time of their making application for an extension of time within which to file the transcript of appeal that there had been delay in the filing of their appeal bond, occasioned, it was stated, by negotiations then pending which looked to a compromise. The court’s action was taken with knowledge of the facts. The application was acted on ex parte to this extent — that the appellee was not formally ruled into court, or notified to show cause why the prayer should not be granted — but appellees are presumed to be in court on the return day, and they are bound, without being specially notified, to take cognizance of motions of this character. They are granted, as the court has frequently stated, without prejudice to the right of the appellee to object, provided this right be exercised with due promptness. In this instance the appellee postponed objecting until after the delays for extension had passed, and after the transcript had been duly filed in the court under the terms of the extensions; and, in urging his objections, there was no denial made of the fact asserted in appellants’ application as to the cause of the delay in filing the bond. Not only was this fact not then denied, but the detailed circumstances touching the negotiations for compromise, as set out in appellants’ brief herein in opposition to the dismissal of the appeal, have been permitted to remain unanswered. Under the conditions stated, appellee could scarcely expect a dismissal of the appeal. We are exceedingly reluctant to dismiss appeals on grounds which evidently have occasioned no wrong nor injury. The appeal in this case is a devolutive appeal. So far as the mere fact of delay itself is concerned, appellants might have abstained from taking any action whatever until the close of the year allowed for taking such appeal, without legal ground of complaint against appellants’ course. As matters stand, the only effect of ordering the dismissal would be to force (as the year for appealing devolutively has not expired) the appellants to the necessity of obtaining a new order of appeal, executing a new bond, and having service of citation duly' made, as the transcript filed would not, under our rules, have to be duplicated. Delay and costs would alone result from dismissing this appeal. We have repeatedly held in matters of injunction that we would not dissolve an injunction when it appeared that the party enjoining would be entitled upon its dissolution to the same remedy. We think this doctrine applicable to the present case. The motion to dismiss is denied.