| La. | Nov 15, 1865
A motion is made to dismiss the appeal in this case, on the ground that more than one year had elapsed from the signing of the judgment, before the order of appeal was granted, said judgment having been signed on the 24th January, 1863, and said appeal granted September 7th, 1865.
A former appeal was takep on 1st June, 1863; and on the 6th June, 1865, upon a motion to dismiss, this court rendered a judgment dismissing the appeal, on the ground that the record did not contain all the evidence adduced on the trial in the lower court, an omission attributable to appellant; which decree was, on the 25th of the same month, duly recorded in the District court.
Plaintiff, after obtaining an order, on 7th September following, for a second appeal, instituted proceedings contradictorily with the appellee to perfect the record, and he now contends that the first appeal was erroneously dismissed, because it was shown in those proceedings that the defect in the transcript of appeal arose from the act of the appellee, and not the appellant; and that the prescription of one year, established by Art. 593, C. P. did not begin to run until the date of filing the record in the first appeal in 1865, because there was no Supreme Court.
It is clear that we cannot now revise the judgment of this court dismissing the first appeal, as it has become final. The appellant failed to avail himself, at the proper time, of the remedies which the law afforded him, and he cannot get the benefit of them in this proceeding.
As to his second position, the Code of Practice provides that “no appeal will lie, except as regards minors, after a year has expired, to be computed from the day on which the final judgment was rendered,” and we can see no reason for exempting this case from the operation of this law. A second appeal may be granted, when the first has been dismissed without a decision: on the merits, provided it is claimed within the year after the judgment became final in the lower court. 11 L. 380.
The rule “ contra non valerdem agere nulla currit prescriptio ” does not apply in this case, as plaintiff did act, in taking his appeal to the Supreme Court, within the legal delay, and citing the appellee to appear here and answer to said appeal; and the fact that there were no judges of the Supreme Court under commission to hold court, or clerk to file the record, does not interrupt the prescription in question. The appellant had al-
The motion must prevail.
It is therefore ordered and decreed, that the appeal herein be dismissed at appellant’s costs.