J. S. Terry Const. Co. v. James K. Sutherlin Co.

82 So. 384 | La. | 1919

Oh Motion to Dismiss Appeal.

MONROE, C. J.

The appeal herein was made returnable to this court on August 20, 1917, but on August 23 appellant obtained an order extending the time for the filing of the transcript by 15 days, or until September 4th. On September 7th an application for further extension of time, to September 10th was presented to the court, but was denied. The transcript was nevertheless filed on September 10th, and appellee now moves that the appeal be dismissed, upon the ground that, the transcript not having been filed either within the delay originally granted, or extended, the appeal is considered as having been abandoned.

It is evident that the appellant proceeded upon the assumption that, as three days, beyond the return day fixed by the order of appeal, are allowed for the filing of the transcript, or for an application for extension of time, a similar delay is allowed beyond that fixed by an order extending the time; but that is not the case. When the time for filing a transcript is extended by order of this court, the transcript must be filed on or before the expiration of the delay so granted, unless, within such delay, an order granting further delay is applied for and obtained. It is too late thereafter, to apply for such'extension. The motion to dismiss, in such case, may be filed at any time. Hudson v. Sheriff, 47 La. Ann. 1534, 18 South. 510; Hake v. Lee, 104 La. 123, 28 South. 1003; Selber v. Young, 109 La. 1080, 34 South. 95; Mix v. Campbell, 115 La. 11, 38 South. 877; Sue. of Theriot, 118 La. 648,. 43 South. 265; Brooks v. Smith, 120 La. 454, 45 South. 388.

The appeal herein is therefore dismissed.