Opelousas-St. Landry Bank & Trust Co. v. Angelas S. Fontenot

ELLIOTT, J. On motion to dismiss the appeal. The appeál in this case was granted on June 25th, 1924, and made returnable on August 18th, 1924. The record was filed in this court on October 17th, 1924, two months after the return day had expired. Pláintiff and appellee has moved to dismiss the appeal on the ground that the record was filed too late. Defendants and appellants, E,mar Fuselier and Honoré Fuselier, oppose the motion to dismiss, urging that the delay in filing the record was caused by the act of one of the counsel for plaintiff and appellee. Assuming that we have original jurisdiction over the facts affecting the jurisdiction of this court (Section 24, Art. 7 of Constitution 1921) we find in the record two affidavits by the clerk of the trial court. The affidavit made by him October 27, 1924, distinctly shows that the delay was caused by an oversight on his part and that the alleged interference by one of the counsel of appellant, which consists of a conversation in regard to certain documents which should have formed part of the record, only took place on October 2nd, 1924, long after the legal delay had already expired. Appeals to the Court of Appeal shall be returnable to the respective domiciles of said court or to such other places as each may by rule provide, in the manner and within the time fixed by law. The rules of practice regulating appeals to and proceedings in the Supreme Court shall apply to appeals and proceedings in the Court of Appeal, so far as they may be applicable until otherwise provided. Constitution 1921, See. 27 of Art. 7. It is settled jurisprudence that a transcript of appeal must be filed on or before the return day expires, under penalty of dismissal. The above appeal is, therefore, dismissed at the cost of appellants.