7 La. 446 | La. | 1834
delivered the opinion of the court.
appCpee moves to dismiss this appeal, on the ground, that it has been irregularly brought up, not having been filed in time.
Judgment was rendered on the 18th of June, and on the 26th, a petition of appeal was presented; the appeal allowed, on the appellant giving bond with security, in the sum of fifteen thousand dollars; appeal made returnable on the third Monday of July following. On the same day a bond was filed, in conformity to the order of the judge.
The effect of this order is first to be considered. The appeal had been taken, and bond given, within ten days after the rendition of the judgment. It was consequently suspensive as well as devolutive. The jurisdiction of the appellate court attached, as soon as the bond was filed; and the court of the first instance, had no longer authority, to take any steps in the case, except such as are necessary to transmit the record to the appellate court. That principle has been uniformly recognised by this court. 6 Marlin, N. S. 464. 8 Ibid., 440. 4 La. Reports, 205.
If a citation of appeal had been issued, in pursuance of the order, returnable on the third Monday of July, it would have appertained to this court, to decide whether a proper return day had been fixed by the judge. But no such’ citation issued. On the contrary, the citation in the record, requires the appellees to appear on the fourth Monday of November.
After the bond had been filed, and the appeal allowed, to wit: on the 14th of July, the appellant applied by supplemental petition of appeal, to the parish judge, representing that there was not sufficient time, to take up the appeal as ordered, and praying an" order, exténding the time for taking it up. An order was accordingly given, extending the return to the fourth Monday of November, and on the 7th of November following, "a citation was issued accordingly.
The Code of Practice, article 574, makes it the duty of the judge, allowing the appeal, to fix the day on which it shall be returned, and in fixing the day, he is to be guided
The return day must, therefore, be within the term next to the time at which the appeal is allowed, if there be time to give the appellee the legal delay, considering his distance from the court; if not, then within the subsequent term. From the 26th of June, to the third Monday of July following, a day within the July term of this court, there was sufficient time, although the appellant may not have had time, on the 14th of July, when the supplemental petition was filed, to cite the appellee for the third Monday of the same month. We are bound to regard the second order of the judge as a nullity.
But it is contended, that as the court adjourned early in July, and was not in session on the third Monday, the return day might well be extended to the subsequent term, and was in fact extended, by operation of law. In the case of Rost vs. St. Francis Church, the court held, that when the term failed-entirely, the appellant might well file the transcript at the next term, within the three first judicial days, after the return day fixed by the order of appeal, 5 Martin, N. S. 191.
But in that case the citation was regular, and the service in time; in this no citation issued, in conformity to the order of the judge. If- it had, the appellants might well have filed the transcript, within the first three judicial days after the return day ; but the judge was not authorised to extend the return day, on the supposition that the one first fixed by him, would not be a judicial day.
It is, therefore, ordered, that the appeal be dismissed, at the costs of the appellants.
