Goodwyn v. Perry & Co. , 25 La. Ann. 292 ( 1873 )

Morgan, J.

Judgment was rendered in this case on the sixth May, 1872, in favor of defendant. An appeal was asked for and allowed on the fourteenth May, returnable on the first Monday in November.

We are asked to dismiss the appeal on the grounds that there were six days to the third Monday in May, and that as there appears no proof or suggestion to the contrary, the presumption is there was ample time to prepare so small a record, and the first Monday of November was not the legal return day; and because this court was in session when the appeal was taken, and the law provides that, during the term, appeals shall be returnable on the first and third Mondays of every month.

The law relied upon (acts of 1870, p. 99, section 1,) provides 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 after granting it to give the notice required by law and to prepare the record j 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 5 if not, then he shall fix the return day for the following term.

The first return day after this appeal was taken was the third Monday in May. As the judgment was only rendered on the tenth of May, and as this transcript contains over two hundred pages, we must presume that the District Court thought it could not have been completed by that time.

As this court adjourns before the first of June to the first Monday in November, it follows that the first Monday in November was the proper return day..

The motion to dismiss is therefore overruled.