Cain v. Stewart

ON MOTION TO DISMISS APPEAL ODOM, J. This case was tried in the district court ox Webster Parish and submitted on February 5, 1929. On February 23, 1929, there was judgment in favor of plaintiff and against defendant. Defendant asked for ana was granted an appeal, both devolutive and suspensive, made returnable in this Court on March 25, 1929. Appellant failed to return the petition of appeal and the transcript of the proceedings into this Court and have the same filed on or before the return day fixed. The appellant, having failed to file the transcript in this Court as provided by law, appellee obtained the same from the Clerk of the district court of Webster Parish, brought it up to this Court, paid the filing fee and had the transcript properly filed here. Appellee has moved in this Court to have the appeal dismissed, and, on April 15, 1929, served notice on counsel for appellant by registered mail that he had moved to dismiss the appeal, and transmitted with said notice a copy of the motion filed. Up to this date, May 18th, no appearance has been made by appellant. The notice was received by counsel for appellant, as is evidenced by their signature on the return registry receipt which we find in the record. Article 587 of the Code of Practice provides 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.” Article 588 of the Code provides that “if the appellant neglect to file in the appellate court the copy of the record and the accompanying papers within the time thus fixed, the appellee may apply one of the modes mentioned in the two following articles, either to have execution on the [284] judgment or final judgment on the appeal.” Article 590 of the Code provides that “if the appellee prefers to have judgment on the appeal, he may obtain a copy of the record from the lower court and bring it up to the appellate court, and may pray for judgment or for the dismissal of the appeal in the same manner as if the record had been brought up by appellant.” The appellee has followed the letter of the Code and asks that the appeal be' dismissed. It is therefore ordered, adjudged and decreed that the appeal herein be dismissed, with all costs.