171 So. 187 | La. Ct. App. | 1936
We have, therefore, before us three motions and requests for our consideration:
(1) Motion by appellant to remand the case to be tried over.
(2) Motion by appellee to dismiss the appeal.
(3) Motion by appellee, if motion to dismiss is overruled, to remand the case in order to take testimony for the purpose of fixing responsibility for the loss of the record.
We will first consider the motion to dismiss the appeal filed by appellee. *188
Appellee has filed with his motion to dismiss the appeal certified extracts of the minutes of the trial court pertaining to this case. From these minutes it appears that an order of appeal, suspensive and devolutive, was granted the defendant on March 13, 1934, in which order the appeal was made returnable to this court on May 10, 1934. From a certificate of the clerk of the trial court annexed to the motion to dismiss, it appears that the record in the case was sent to the clerk of this court by the district clerk on March 7, 1935, almost ten months after the return date of the appeal. From another certificate of the clerk of the district court annexed to the motion to dismiss, the deposit fee of $5 required for taking an appeal was not deposited with the clerk of the district court until February 21, 1935, more than nine months after the return day. In the absence of the original record showing the filing date in this court, we have the right to consider these facts as shown from the minutes of the trial court and from the certificate of the clerk of that court.
Under the rules of this court it is the duty of the appellant to see that the transcript is filed on the return day, or within the three days of grace; and, in order to save the appeal from dismissal for failure to file it within that time, it is incumbent on the appellant to secure an extension of the return day. See Wiggins v. Texas N. O. R. R. Co.,
It is not contended by appellant that there was any application made by her for an extension of the return day. In the absence of the record, we may therefore safely assume that no such extension was granted. If we are to adhere to our rules and our three previous decisions on this point, there remains nothing else for us to do but dismiss the appeal for failure to file the transcript on the return day, or within the grace period.
Even though we should follow the rules and practice of our brethren of the Second Circuit and hold that the responsibility for filing the transcript in the Court of Appeal on the return day rests with the clerk of the district court who has the custody of the original record, yet, as the appellant did not make the necessary deposit within time to enable the clerk to file the record in this court on the return day, the fault would have to be imputed to the appellant, and the appeal dismissed. See Danna v. Yazoo M. V. R. R. Co. et al. (La.App.)
While the statement made in the opinion by this court in the recent case of Vinyard v. Stassi, Reggio, Intervener (La.App.)
For these reasons, the appeal herein taken is hereby dismissed.