Union National Bank v. Legendre

On Motion to Dismiss. The opinion of the Court was delivered by Todd, J. The motion to dismiss is on the following grounds : 1. “ That it does not appear that any order granting an appeal was entered on the minutes of the court.” [791] It does not so appear in the original record, but by means of a certiorari the record was corrected, and it now appears that the entry was properly and seasonably made. 2. “ That the defendant had abandoned his appeal by not filing his transcript in this Court within three judicial days from the 1st Monday of November.” The judgment appealed from was rendered in the District Court on the 1st of Julj-, 1881. On the next day, plaintiff and appellant moved for an appeal, and on the same day an order of appeal was rendered and the appeal bond filed. By this order the appeal was made returnable on the— day of November, 1881, the day not being fixed in the order by the Judge granting it. The transcript was not filed in this Court on the 1st of November, nor within three judicial days thereafter, but on the fifteenth of that month, the plaintiff and appellant appeared in the court a qua, and suggesting that the order was defective on account of this omission, the Judge supplied the omission and named the 21st day of November as the return day, and the record was filed in this Court the same day the correction was made, (the 15th November, 1881). We think this was sufficient. This precise question arose in the case of Laicher vs. The N. O. & J. R. R., 28 An. 320, from which we quote as follows: “ The plaintiff moves to dismiss the appeal because the transcript was not filed in this Court within three judicial days from the return day. “ It appears that on the 30th of December, 1872, the defendant filed a petition for an appeal, and the Judge, in granting the order, omitted to fix the return day. Subsequently, to-wit: on the 8th of March, 1873, he made an order fixing the return day on the 3d Monday of March, 1873, at which time the transcript was filed in this Court. “The fault is not attributable to the appellant. It was an error of the Judge, and the appeal cannot be dismissed on account thereof.” This decision accords with the spirit of the Act of 1839, under the liberal policy of which an appellant was relieved of all irregularities in the proceedings relating- to the appeal, not attributable to his fault, and has prompted the Courts, in all cases of doubt on this point, to give to the appellant the benefit of such doubt. It may be that this principle has been extended so far that, as argued by the appellee’s counsel, had the transcript been filed in this Court on or before the return day, with the omission as to the return day unsupplied, the appeal would not have been dismissed. But it by no means follows from this, that the appellant, failing to take such risk, prefers to have [792] the correction made, and files his transcript in this Court on or before tl'ie day actually named and fixed by the Judge, loses his right to appeal. Whatever may be the irregularity of the proceeding, the primary cause of it was the fault or omission of the Judge, for which the appellant should not be punished. 3. “-That the appellants have not been cited to answer the appeal.” The order of appeal was rendered in open court, and when an appeal is thus taken, no citation is necessary. The subsequent order, fixing the day was not a new order of appeal, but merely a correction of the previous order, a perfecting of an existing appeal, and no citation was required. This distinguishes this case from that of Fournet vs. Yan Wickle, cited, which merely determined that an appeal taken in open court, defective because the amount of the bond was not fixed by the Judge, could not be perfected by an order rendered in chambers, on the petition of the appellant. For these reasons the motion to dismiss is denied.