Wilder v. Jackson , 150 La. 863 ( 1922 )

On' Motion to Dismiss Appeal.

MONROE, C. J.

[1] Defendants,, appel-lees, move to dismiss the appeal herein, on the grounds: (1) That there was no valid order of appeal or fixing of the bond, those functions having been discharged by the clerk, who was unauthorized thereto; (2) that the “so-called” order was signed on July 3, 1920, and made the appeal returnable on July 12, following; which was less than the 15 days required by law; (3) that the transcript was not lodged in this court within the delay thus fixed.

1. Act 75 of 1884 authorizes the clerk to grant an order of appeal-and fix the amount of the bond, in the absence of the judge from the parish, upon a petition or application in which such absence is made to appear by the oath of the party or his attorney; and, as appears from the record', those requirements were complied with. The granting of such an order is a ministerial function which. is within the power of the General Assembly to authorize the clerks of the district court, outside the parish of Orleans, to perform Const, art. 123.

2. The petition prays that an order for a devolutive appeal be granted, and that the amount of the bond and return day be fixed. The clerk, on July 3d, fixed the bond1 at $250 and made the appeal returnable on the second Monday (which fell on the 12th) of July. It should have been made returnable in “not less than 15 nor more than 60 days” from the date of the order (Act 106 of 1908); but it has been held that an appellant cannot be prejudiced by the error of the judge (and the same ruling applies to the clerk, acting in place of the judge), in fixing the return day of an appeal (Pearce v. District Atty., 49 La. Ann. 643, 21 South. 737; Lazarus v. Friedrichs, 125 La. 619, 51 South. 663; State v. Augustus, 129 La. 617, 56 South. 551), and it has further been held that an appeal will not he dismissed because lodged in this court before the return day fixed by law, though the appellee need not answer or otherwise act until then (Ross v. Naff, 130 La. 594, 58 South. 348).

3. The transcript was lodged in this court on July 13, which was within the minimum delay fixed by law and also within the days of grace, from the return day as fixed by the clerk.

The motion to dismiss is therefore overruled.