Bienvenu v. Factors' & Traders' Insurance Co.

28 La. Ann. 901 | La. | 1876

Howell, J.

A motion is made to dismiss this appeal on the ground that the transcript was filed too late. The appeal, taken by one of the defendants only, was made returnable on the third Monday, being the twentieth day of March, 1876. On the twenty-seventh of March, the return-day was extended to the third Monday (seventeenth day) of April, 1876. The transcript was not filed until the twenty-ninth of April. But the appellant contends that, as this court adjourned on Saturday, the fifteenth of April, to the first day of May, he had no opportunity of applying for a second extension, and therefore it was not his fault that such extension was not obtained, and the record being filed before the first judicial-day after the expiration of the first extension, he was in time.

The question presented is, has the appellant a delay or grace for filing the transcript after the day to.which the return-day is extended, if such extended return-day is not a judicial though a legal day ?

The question must be answered in the negative. It is well settled that no days of grace are allowed after the day to which the extension is granted, and the fact that such day is not a judicial-day can make no difference. The further time granted for bringing up the appeal, under article 883 O. P., is simply an extension of the days of grace, a postponing of the return-day by order of the court, which becomes fixed, if not moved or postponed by antecedent action of the court.

The presumption is, that the appellant has asked for all the time which will be required; and, if such be not the fact, the duty is on him to have it enlarged before the expiration of time given to him. The law does not accord any time of grace to the extended return-day, and the court is without authority to. grant it.

It is therefore ordered that the appeal herein be dismissed with costs.

Rehearing refused.