Wiggins v. Texas & New Orleans R. R.
Also decided on this docket: La. Ct. App. 1st Cir., December 3, 1962 147 So. 2d 222; La., July 1, 1880 1 Mann. Unrep. Cas. 307; La., June 15, 1876 28 La. Ann. 607; La., June 15, 1873 25 La. Ann. 534; La. Ct. App. 3d Cir., June 14, 1963 152 So. 2d 119
Wiggins v. Texas & New Orleans R. R., 135 So. 265 (La. Ct. App. 2d Cir. 1931).
Cited by
Followed in 1
- Riggs v. F. Strauss Son 2 So. 2d 501 La. Ct. App. 1st Cir. 1941
- Sanders v. Wyatt 171 So. 431 La. Ct. App. 1st Cir. 1936
- Mansaur v. Anding 171 So. 187 La. Ct. App. 1st Cir. 1936
- Sanders v. Wyatt 170 So. 519 La. Ct. App. 1st Cir. 1936
- Dorfer v. City of Natchitoches 160 So. 807 La. Ct. App. 1st Cir. 1935
- Danna v. Yazoo M v. R. Co. 154 So. 365 La. Ct. App. 1st Cir. 1934
- Weber v. Kemp 148 So. 279 La. Ct. App. 1st Cir. 1933
- Abelleira v. Johnson Iron Works Co. 137 So. 908 La. Ct. App. 1st Cir. 1931
- Womack v. Highway Const. Co. 137 So. 210 La. Ct. App. 1st Cir. 1931
Authorities cited
Identified automatically; this list may not be exhaustive.
- Stockbridge v. Martin 162 La. 601
Opinion text
MOUTON, J. Judgment, in this case, was rendered against plaintiff April 24, 1930. A devolutive appeal was granted plaintiff returnable to this court on June 23, 1930. The record was filed in this court February 28, 1931, more than six months after the return day for the appeal had expired. On the ground that the record was filed too late, defendant moves to dismiss the appeal. Appellant contends that he should not be denied his right of appeal because the clerk of court has failed to file the record in time. *32 The main reliance of appellant in support of that contention is based on the decision in Stockbridge v. Martin, 162 La. 601 , 110 So. 828 . In. that case, which came up from the Court of Appeal, Second circuit, the Supreme Court, in overruling the motion to dismiss, referred to the rule in that circuit, which made it the duty of the clerk of the district court to file the record in the Court of Appeal on or before the return day. Under the rule of this court on that subject, it is incumbent on the appellant and not on the clerk to have the record filed within the time fixed for the return day of the appeal as it is required in the Supreme Court by articles 587, 588, 883, Code Prac. .Const. 1921, art. 7, sec. 27, says: “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.” We find that the rule which requires the appellant to have the transcript filed in the Supreme Court on the return day applies to the filing of the original records in this court. After the appellant has made the required deposit of costs for his appeal, he has the right to have the record filed by the clerk of the district court in this court on the return day of the appeal. In case of the inability of the clerk to make the filing in time, he may obtain an extension of the delay by proper application. The record having been filed too late in this case, the motion must prevail, and the appeal is therefore dismissed, at appellant’s cost.