Darnell v. Herrin Oldsmobile Co.

DREW, J. On June 19, 1929, judgment was rendered in the lower court dismissing plaintiff’s suit as of non-suit; on June 22nd the judgment was read, signed and [50] filed; and on June 29tli oral motion was made by plaintiff for orders of devolutive appeal to this court. The appeal was granted and made returnable here on August 12, 1929, the devolutive bond being fixed at $50. On July 24th, the appeal bond was filed, and the transcript delivered to the clerk of this court by the clerk of the district court on August 9, 1929, but same was not filed in this court until August 30, 1929, for the reason that the filing fee to cover the cost of appeal was not deposited with the clerk of this court by appellant until that day. Appellee has filed a motion to dismiss the appeal, based on the failure of appellant to return the transcript into this court on the return day, or within' the three days of grace allowed thereafter. The clerk of the district court fully complied with his duties by delivering the transcript to the clerk of this court on or before the return day, and the failure to file the transcript is due entirely to the fault of appellant in not depositing with the clerk of the district court or the clerk of this court the filing fee to cover cost of appeal. This court in the case of Nelms v. Hankins Brothers, 5 La. App. 733, and in the case of Webb Johnson v. Oil City Bank, 14 La. App. 698, 130 So. 854, in which latter case opinion was rendered on November 7, 1930, has passed directly on this point. It is therefore ordered, adjudged and decreed that the motion to dismiss the appeal be sustained and that the appeal be dismissed at appellant’s cost.