37 La. Ann. 391 | La. | 1885
Motion to Dismiss.
The opinion of the Court was delivered by
On February 14th nit., a motion was made by the appellant to transfer this ease to the Circuit Court, bolding session in the parish of St. Helena.
This motion was opposed by the appellees, who claimed that this Court should dismiss the appeal because there bad been filed no transcript of appeal within the extended delay.
The motion to transfer was based on tile ground that since the adoption of ’the constitutional amendment of Article 81, this Court had ceased to have jurisdiction over the matter in dispute, the fund proposed to he distributed being less than $2000.
This fact was not denied by the appellees, who were considered as admitting it.
In the absence of a transcript to verify the averment, this Court transferred the cause to the Circuit Court, without prejudice to the rights, if any, of the appellees.
Thai court, with the means of ascertaining whether the fund to be distributed exceeded or not $2000, arrived at the conclusion that the fund did exceed that amount, and declined to take jurisdiction over the matter transferring the same to this Court.
Here, both appellants and appellees now admit that tho representation on which this Court acted was made in error of fact, and that the fund proposed to he distributed, in truth, exceeds the lower limit of ibs jurisdiction.
Tlio order transferring the cause to the Circuit Court made on February 14th ult. is, therefore, rescinded and the cause reinstated..
It appears that the appellant obtained an order of appeal returnable to this Court on the second Monday of February, 1883; that seasonably, viz : on the third judicial day (Thursday) lie applied for and obtained an extension of time of the return day till the second Monday of February, of the following year (1884),'and again, on the 23d of January of that year, lie obtained another extension to the next term which opened on February 9, 1885, on which the transcript was not filed.
On the 12th following, however, he filed certain papers, purporting the one to be an account of the administration and the other reasons for judgment.
Those papers did not constitute a transcript of appeal.
Even had the appellant then filed such transcript, the same could not he considered as filed seasonably, for the double reason, that the appellant did not obtain, previous to the 9th of February, further time to file the transcript, and that he was not entitled thereafter to the usual three days of grace which follow the return day.
It is, therefore, ordered, that the case he stricken from the docket of this Court.
