Wheeler v. Britton

On Motion of Appellant to Rescind the Order Fixing the Case for Trial by Preference, etc. O’NIELL, J. A judgment of divorce was rendered in the district c'ourt in favor of the plaintiff and against the defendant on the 22d and was signed on the 26th of March, 1915. On the 20th of April the defendant, through her curator ad hoc, asked for and obtained an order for an appeal, which was made returnable to this court on the 24th of May, 1915. The appeal bond was filed 'on the 20th; and on the 23d of April the curator ad hoe, on behalf of the defendant, appellant, filed in the district court his instructions to the clerk for the preparation of the transcript of appeal. The transcript was completed [977] according to the appellant’s instructions and certified to by the clerk of court on the 6th, and was filed in this coúrt on the 7th of May, 1915. 'On that day, on motion of the appellee’s counsel, the case was ordered put upon the preference docket and assigned for hearing on the 28th of May. [1] The curator ad hoc of the appellant appeared in court on the 10th of May and asked to have the order assigning the case for trial by preference rescinded, and to have the transcript stricken and expunged from the records of this court. He alleges in his motion that the transcript of appeal has not yet been filed in this court by the appellant, but that the appellee has filed a “copy of cer.tain, documents in the case” and is treating the same as a transcript of appeal. Counsel for the appellee admit that they obtained from the clerk 'of the civil district court and filed in this court the triplicate copies of the transcript of appeal. Article 590 of the Code of Practice-pro-t vides: “If the appellee prefers to have judgment on the appeal, he may obtain a copy of the record from the lower court, and bring it up to the appellate court, and may pray for judgment or for the dismissal of the appeal, in the same manner as if the record had been brought up by the appellant.” In the case of Barbarin v. Armstrong, 2 La. 208, the transcript of appeal was brought up by the clerk of the trial dourt, and the appellee, in answer to the appeal, prayed that the judgment be affirmed, and for damages for a frivolous appeal. The appellant contended that the judgment could not be affirmed because the record had not been filed by the appellant nor by the appellee. It appears that: “The appellant’s counsel desired the clerk of this court not to receive it, nor to enter it on the docket.” It was said: . “The appellee was duly cited, and his counsel, finding a copy of the record in the clerk’s office, might well avail himself of it, and move for the affirmation of the judgment. Code of Practice, 530 (meaning 590). We do not see any utility in his procuring- a second copy. ‘Lex neminem cogit ad vana seu inutilia peragenda.’ ” In State ex rel. Duffel v. Marks, 30 La. Ann. 70, it was said: “Any interested person may bring up the record of an appeal from the lower court and deposit-. in the hands of the clerk of the Supreme Court.” The requirement that the return day shall be fixed in the order of appeal does not mean that the transcript 'of appeal shall not be filed before the return day. The return day only marks the limit of time within which the record shall be filed in the appellate court. It may be filed at any time before the return day, without prejudice to the appellee’s right to move to dismiss the appeal. Ross v. Naff, 130 La. 590, 58 South. 848; State ex rel. Marrero v. Patterson, 134 La. 875, 64 South. 805. The language quoted from the opinion in Abraham v. Wallenberg, 130 La. Ann. 1096, 58 South. 895, in appellant’s brief, has no application to the question presented in this case. It was said there incidentally that the functions of the clerk of the district court, in the matter of appeals from that court, are limited to the preparation of the transcript and its delivery t'o the appellant, and that it is the appellant who must return the same into the appellate court on the return day. But these expressions did not mean that the transcript may not be filed in the appellate court 'before the return day, either by the appellant or by the appellee. What was meant and said was that it was not the duty 'of the clerk of the district court to file the transcript in the appellate court. This court had jurisdiction of the present appeal at the time the order was rendered, putting the case on the preference docket and assigning it for argument. In fact, this | court acquired jurisdiction of the appeal as [979] soon as the appeal bond was filed in the civil district court. Pemberton v. Zacharie, 4 La. 205; Barrow v. Clack, 45 La. Ann. 478, 12 South. 631; Crichton v. Webb Press Co., 107 La. 87, 31 South. 648; Robertson v. Goldsmith, 128 La. 1019, 55 South. 660. The learned curator of the absent appellant does not suggest that he cannot be prepared to argue or submit the case on the 28th of May, or that the fixing of the case for trial on that early date was prejudicial to the appellant. The only relief asked for Is that the transcript of appeal be stricken and expunged from the records of this court, and that the order setting the case for trial be rescinded. The purp'ose of the appellee’s counsel in filing the transcript as soon as it was prepared, and in having the case put upon the preference docket, where it belongs, manifestly was to have the appeal disposed of at this term of court, which would not have been possible otherwise. The appellant’s motion to strike out and expunge the transcript of appeal from the records of this court and to have the order fixing the case for trial rescinded is denied. MONROE, C. X, takes no part.