Bartoli v. Huguenard

On Motion to Dismiss The opinion of tlie Court was delivered by Poché, J. The ground of tlie motion is error in the return day, imputable to appellant. The order of appeal bears date October 16, 1885, and the appeal is made returnable on the first Monday of December following; to the order is added the statement, “there not being time to prepare the transcript for tlie next ensuing term.” Tt is contended,'And it is not denied, that the return day was suggested by appellant’s counsel. The question is therefore tlie alleged error of the return day. The law of the case is Act No. 45 of the Legislature, approved March 16, 1870. Under its first section, appeals from the parish of Plaquemines are returnable to this Court at New Orleans on the first and third Mondays of each month of tlie session here. This appeal should therefore have been made returnable on tlie first Monday of November, 1885, unless the judge had the legal discretion or authority to select a different day. Section 47 of the act provides in substance: That in all cases of appeal, the judge of the court from which it is taken shall make the appeal returnable to the Supreme Court at the next return day for appeals from the parish, if there shall he time enough after granting it to give the notice required by law and to prepare tlie record; if not, then lie shall fix the return day for some day within the next term after the appeal is granted. In this case the order contains the information that the record could [414] not be prepared in time for the ensuing term. But appellee contends that the statement is erroneous, and in support of the contention her counsel presents two certificates to which he directs our attention. In granting the order as framed by appellant’s counsel, the judge must in law be held to have adopted the statement for the necessity of a change of the regular return day, as well as his suggestion of the return day itself. Hence, this Court is authorized to conclude and it must therefore hold, that in the opinion of the judge a quo there was not sufficient time to prepare the record by the next regular return day. That statement is part of the record, the size of the transcript corroborates its truth, and we find nothing in. the record to contradict it. We cannot and we shall certainly not go out of the record for evidence to contradict that which appears in the record. Hence, wre must decline to consider either the certificates annexed by appellee or the counter affidavit filed by appellant's counsel. Wooten vs. LeBlanc, 32 Ann. 695. We cannot presume that the judge in allowing the statement to be of record, that more time was necessary to prepare the transcript, meant to say otherwise, or erred in the statement which, under the effect of his ruling, became his own. It is not even intimated that any attempt was made to deceive him, or to obtain any undue advantage over the appellee. The appeal taken is devolutive, and it could have been brought up by petition at any time within the year. We have considered the cases relied on by appellee; they are not applicable to the restricted issue involved in this motion. In those cases the motion hinged upon a motion day absolutely erroneous under the law, in which the judge transgressed the law at the suggestion of appellant, whereas in the instant case the inquiry is directed to the exercise of legal discretion by the judge of the court whence the appeal was taken. Wooten vs. LeBlanc, 32 Ann. 692; State ex rel. Lee vs. Jumel, 35 Ann. 980. Tn the present order the judge has acted within the bounds of the legal discretion vested in him, and the appeal must be sustained. The motion to dismiss this appeal is therefore overruled, with costs.