Hudson v. Garrett

The opinion of the court was delivered by McEnery, J. The motion to dismiss the appeal is based upon the ground that the transcript was not filed within the legal delay. On the application of the appellant the return day for filing the transcript was extended until the 20th day of May, 1895. It was [1535] filed on the 22d day of May, 1895, two days after the date fixed by the court for the filing of the transcript. The law does not give any days of grace to the extended return day. Bienvenu vs. Factors and Traders’ Insurance Company, 28 An. 901; Cane vs. Caldwell & Kahn, 28 An. 790; Heller vs. Lochte & Cordes, 28 An. 45; Sun Mutual Insurance Company vs. Tom Bynum et al., 32 An. 28; Succession of Quin, 37 An. 391; Von Hoven vs. Von Hoven and Husband, 43 An. 1170; Archer vs. Gonsoulin, 46 An. 141. The motion to dismiss was filed on the 7th June, 1895 — more than three days after the transcript was filed. The appellant contends that the motion was filed too late. The motion to dismiss is not based on any informalities or irregularities in bringing up the appeal, which would require the motion to be filed within three days; but it is based on the fact that the transcript was not filed in time, the presumption being that the appellant, failing to file it in time, had abandoned his appeal. In such a case the motion can be filed at any time. Dwight vs. McMillan, 4 An. 350; McDonogh vs. DeGruys, 10 An. 76. The appeal is dismissed.