No. 8040 | La. | Jan 15, 1881
Motion to Dismiss.
The opinion of the Court was delivered by
Appellee moves to dismiss this appeal on the ground •that the transcript was filed too late.
The appeal was made returnable on the first Monday of November last, 1880.
On the 3d of November, within proper time, and on proper showing, appellant obtained an extension of time to the first Monday of Decern-' ber following for filing his transcript. On the day on which this delay expired, the Court being not in session, appellant filed in the clerk’s office a motion for a further extension of time of thirty days, on which ¡motion the Oourt ruled at the next court day, the 13th of December,
The only question presented for solution is as to the date from which must be computed the extension of time applied for on the 6th,. and granted on the 13th of December.
Appellant contends with confidence that the time must be computed from the thirteenth, and did not, therefore, expire before the 28th. If his reasoning be correct, and he cannot deny that the limit of his first extension was on the 6th, we are at a loss to conceive what disposition he expects us to make of the intervening week between these two dates. Either he obtained a renewal of extension to take effect from the 6th, on which his first extension expired, or he did not; if he did, then the renewed delay must have expired on the 21st following, fifteen days thereafter, and his application of the 24th came too late. If he did not obtain’ a renewal on that day, or to take effect at least from that day, then his extension obtained on the 3d of November up to the first Monday of December, had expired, when he renewed it as he contends, on the 13th of December, in which case our order of that date was inadvertently granted, and was a nullity.
Our version is that his application filed with the clerk on the. 6th of December, while the Court was not in session, was seasonably made, and justified our order granted on the next court day, the 13th, and that the effect of the order retroacted to the day on which the application had been made, and that the delay therein expired on the 21st. 31 A. 162.
It therefore follows that the application made on the 24th, and granted on the 27th'of December, came too late, and that our order of that date was inadvertently granted, and is an absolute nullity. See-cases Succession of Kuntz & Lacroix vs. Bonin, recently decided, and not yet reported.
The Court can grant no valid order in contravention of law, and when surprised as in this case, into an error of computation of time, will rescind its own orders without special motion to that effect.
In making such motions, attorneys must be careful to be within the plain requisites of the law, or else they will eventually be deprived of any relief whieh may be granted inadventently.
It is, therefore, ordered that this appeal be dismissed at appellant’s costs.