French v. Harrod

Voordies, J. The defendants have moved for the dismissal of the appeal in this case, on the ground that the transcript was not filed in this Court on the return day, to-wit, the 28th of June, 1862, nor within three judicial days thereafter. It appears that the transcript was filed on the 6th of November, 1862, and that, in the interval, the Court was in session on the 28th, 29th, and 30th of June; on the 1st, 2d, and 3d of July, and on the 3d, 4th, and 6th of November, the day on which the transcript was filed. Granting the appellants the benefit of any doubt which might have existed in their minds as to the constitutionality of the session held in July, still four entire judicial days had already elapsed when they filed the transcript in this Court. But it is urged by the appellants’ counsel, that we should, in the exorcise of our discretionary power, refuse the dismissal of the appeal, because the appel-lees have incurred no inconvenience or injury from the delay, and rely on the case of Smith v. Foster, 6 An. 651. In that case, the extension of time granted by the Supreme Court to the appellant to file the transcript had expired during the vacation of the Court, but it was filed on the first day of the ensuing term. But here the transcript was filed the 3d day after the commencement of the term. The facts stated in the affidavit submitted to our consideration by the appellants’ counsel, do not show that the appellants were prevented by circumstances beyond their control, from filing the transcript within the delay prescribed by law, so as to entitle them to relief at our hands. We adopt the rule laid down in the cases of Palfry v. Winter, 8 La. 206, and Vancampen v. Morris, 6 R. 79, as a correct exposition of articles 687 and 689 of the Code of Practice. It is therefore ordered, adjudged and decreed, that the appeal be dismissed at the appellants’ cost.