Comeau v. Miller

On Motion to Dismiss Appeal. The opinion of the court was delivered by Watkins, J. The ground of appellee’s motion is, that appellant has been guilty of laches in bringing up the appeal, not having filed the transcript of appeal in this court within one year next succeeding the signing of the judgment appealed from. Hence her averment is that the plaintiff’s right of appeal lapsed. The record shows that the judgment was signed on the 16fch of June, 1893, and that the transcript was filed in this court on the 3d of July, 1894 — more than twelve months intervening between those two dates. But in this case the judgment of the District Court did not become final until the date of the adjournment of the term on the 26th of June, 1893, and the appeal was taken by petition and citation, the [1325] judge’s order having been granted on the 3d of July, 1893, making the appeal returnable to this court on the first Monday of July, 1894, and the service of the citation of appeal having been made on the 4th day of May, 1894. It was pérmissible for the court to fix the return day as he did (O. P. 583) ; and the order of appeal having been granted within one year, “ computed from the day on which final judgment was rendered ” (O. P. 593), it was timely. These rules do not, however, appertain to the mode or time of lodging the transcript of appeal in this court, for the rule of law is that “ the appellant must return the said petition of appeal and the transcript of the proceedings into the court of appeal on the return day thereof.” C. P. 587. The appellant has complied with the law in bringing up and filing the transcript. There is, therefore, no merit in the defendants’ motion and it is denied.