Winchester v. Ory's Syndics

Martin, J., delivered the opinion of the court. , . . The appellee prays for the dismissal of the appeal on the following grounds : 1. Because the record was not filed on the return day thereof. 2. The appellee has obtained the clerk’s certificate, that the record was not filed within the legal delay after the return day. The appeal was made returnable to the first Monday in January, and the record was not filed until the 27th day of that month. In the meanwhile the appellee had obtained the certificate of the clerk of this court. • The attorney of the appellants has shown that one of them, Andry, died since the appeal was obtained; and his survivor being unable to stand in court alone, the case ought to be continued until a new syndic be appointed, as'the creditors have not authorized one of them to act alone. The motion to dismiss was made on the 3d March. This case is clearly within the provisions of the act approved 20th March, 1839, section 19. The appellee having taken the certificate, must be presumed to have proceeded to the execution of his judgment notwithstanding the appeal. This circumstance is, in some degree favorable to the appellants, as it renders the appeal less onerous to the appellee. But we are, by the late law, directed to forbear tq dismiss the appeal, when the delay in bringing up the record is not to be imputed to the appellant. We are of opinion, that the death of one of the syndics, presents at least an excuse to the survivor, who may have believed that the deceased one, had given directions to bring up and file the appeal in proper time ; especially as the delay does not appear to have occasioned any real injury to the appellee. The motion to dismiss is, therefore, overruled.