Lopes v. Sahuque ( 1904 )

On Motion to Dismiss.

NICHOLLS, J.

Plaintiff and appellee moves to dismiss this appeal on the ground that it had been abandoned by the appellant.

This claim is based upon the fact that the appeal was made returnable on the first Monday of November, 1904 (the 7th of November), but the transcript was not filed until the 10th of November, though the court was in session on the return day.

The attention of the court is called to the fourth and fifteenth sections of Act No. 45, pp. 100, 101, of the Extra Session of 1870, which read as follows;

“That in all cases of appeal the judge of the court from which it is taken shall make the appeal returnable to the Supreme Court at the next return day for appeals from the parish if there shall be time enough for granting to give notice required by law to prepare the record— if not then he shall fix the return day for some day within the next term after the appeal is granted, allowing sufficient time to give the citation required by law, and to prepare the record if sufficient time within the term shall remain ; if not, he shall fix the return day for the following term.

“If the Supreme Court shall not be in session on the day fixed for the return day of any case it shall be sufficient for the appellant to file the record within three judicial days at the first session of the Supreme Court thereafter.”

Section 15 repeals all laws or parts of laws in conflict with the provisions of the act.

The argument in behalf of the motion is that a transcript must be filed on the day it is returnable, unless it should happen that the Supreme Court is not in session on that day. If that should happen, then, and not otherwise, the appellant may file it on some other day, provided it be within three judicial days at the first session of the court.

Before the enactment of the act in question the subject-matter was governed by artides 588, 589, and 885 of the Code of Practice and the jurisprudence under these articles.

It is conceded that, under these articles and that jurisprudence, appellants were not forced to file their transcripts on the return day, even though the court was in session that day, hut were permitted to file them within three judicial days following the fixed return day.

This court, in the judgment rendered in the case of Wood v. Wood, 32 La. Ann. 801, long after the passage of the act of 1870, held that this practice had been almost invariably so recognized that the jurisprudence on that point was so ancient that it had become a fixed rule throughout the state, which, far from disturbing, the court formally indorsed; that it deemed it very unnecessary to lefer to authorities which were very numerous and admitted by counsel to exist.

Counsel declares that the jurisprudence was not well settled when this declaration of the court was made. He says that his examination failed to show that the issue had been at all before the court between 1870 and 1880, and asserts that the jurisprudence before 1870 was not at all in point, because it was based on articles of the Code which had been superseded in this particular, at least by the act of 1870, and that the truth was that the act of 1870 was not called to the attention of the court.

We are not warranted in assuming that the court,. in passing upon the question in the Wood Case, did not take into consideration the act of 1870. What the court did unquestionably notice was the fact (in spite of that statute) of the universal recognition and acquiescence up to that late date by the bar of the state in the practice which had been fixed by the!former jurisprudence.

If the question had not been presented to and passed upon by the Supreme Court after 1870, it was obviously precisely because, in the opinion of the profession, the new statute had not brought about the change which counsel contends for.

The practice of the court has been declared to be the law of the court, and, if the practice on this subject was declared to have become fixed as far back as 1880, how could it be expected that we should change it twenty-four years later? To make this change would work the greatest injustice to parties and attorneys who had based their conduct upon a constant jurisprudence.

Counsel himself refers to numerous decisions of this court recognizing the existence of the practice: Rost v. St. Francis’ Church, 5 Mart. (N. S.) 192; Bell v. Williams, 3 La. 250; Palfrey v. Winter, 8 La. 205; Vancampen v. Morris, 6 Rob. 79; Bouligny v. M. White, 5 La. Ann. 31; and French v. Harrod, 9 La. Ann. 21; and to the later cases of Rosetta Gravel Co. v. Adler, 52 La. Ann. 689, 27 South. 183, and Posner v. Southern Exhaust & Blow Pipe Co., 109 La. 658, 33 South. 641, which later cases, he declares, have no bearing, as matters fell under the terms of the act of 1870.

The views we have expressed above are a repetition of those recently announced in State ex rel. Perkins v. Recorder, 111 La. 237, 35 South. 534, to which our attention has been specially called by appellant’s counsel. The point now urged by the appellee was directly presented in that case, and was held to be not well taken.

The act of 1870 found the jurisprudence fully established at that time as to the date up to which an appellant could file his transcript when the court should be in actual session on the fixed return day, but the situation was not defined as to what it should be if the court was not in session on that day. The object of the statute was simply to place that particular situation beyond controversy, not to alter or -repeal the already settled practice. There is no inconsistency between the provisions of the new statute and the continuance of the prior practice.

The motion to dismiss the appeal is denied.