Succession of Kuntz

[31] On Motion to- Rescind Order and to Dismiss. The opinion of the Court was delivered by Poché, J. On the 16th of July, 1880, the late Second District Court, of the parish of Orleans, granted to John Ponstein a suspensive appeal from a judgment rendered in this succession, and on the twenty-eighth of July of the same year the same court discharged a rule taken against appellant for the purpose of setting aside his appeal, which then became • absolute, and was made returnable to this Court on -the first Monday of November, 1880. On application made by appellant’s counsel, on the 1st of November, 1880, supported by a certificate of the clerk of the Civil District Court of the parish of Orleans, to which the cause had been transferred on the 29th of October, 1880, which certificate stated that the transcript had not yet been completed for want of time, a delay of thirty days was granted by this Court to appellant for the completion of the transcript. On the first of December following, a similar application, supported by a similar certificate, was made by appellant, and an additional delay of fifteen days was granted by this Court; and on the sixteenth of December following another application for an extension of fifteen days was again urged in a similar manner by appellant, and on this no action has yet been taken by this Court. In the meantime, appellees filed in this Court, on the thirteenth of December, a motion setting forth the above facts, and annexed thereto a certificate of James T. Clark, clerk of the Civil District Court of the parish of Orleans, in which he states that from the fifth of November to the tenth of December last, the original papers in this cause had been continuously in the possession of appel'int’s counsel, and that the transcript had not yet been begun on the eleventh of December, the date of his certificate; and appellee’s motion concludes with the prayer that our orders granting delay for the filing of the transcript be rescinded, and that the appeal be dismissed. The mere statement of the foregoing facts and occurrences shows that our order, granted on December first, allowing an extension of fifteen days, was predicated on an alleged cause of delay, which is materially contradicted by the certificate of the clerk, under date of the eleventh of December, and that the order was, therefore, wrongfully obtained. The absence of the original record from the clerk’s office, and its detention by appellant’s counsel, not want of time, were the causes which delayed the completion of the transcript. In their sworn motion for an additional delay, under date of De- . cember sixteenth last, appellant’s attorneys offer an explanation which [32] screens them from any imputation or suspicion of unfairness in their detention of the papers ; but it is not sufficient to protect them from the legal effect of their neglect or omission in not producing the transcript in due time. The order granting the additional delay having improvidently issued, must therefore be rescinded; but as we have no transcript, and therefore no appeal-before us, we do not feel authorized to dismiss the appeal. It is, therefore, ordered that our order of December first, granting appellant an additional delay of fifteen days, within which to file his transcript of appeal, be rescinded, and that his application for further delay, filed on December 16th, 1880, be refused, and that he pay the costs of these proceedings. Levy, J., absent.