Rex Realty Co. v. Howard's D. G. S., Inc. , 186 La. 867 ( 1937 )

The appellee filed a motion to dismiss the appeal on the ground that the order granting an extension of time within which to file the transcript was improvidently issued, because the appellant failed to apprise the court of the fact that the appellant's negligence, carelessness, and indifference in filing the devolutive appeal bond was the sole and only reason why the transcript was not prepared timely.

The record shows that the plaintiff sued the defendant for the sum of $3,200, represented by a series of thirty-two notes, each for the sum of $100, bearing 8 per cent. interest and secured by a chattel mortgage on all of the property owned by the defendant. This property was seized under a writ of sequestration. There was judgment below in favor of the plaintiff, as prayed for, on June 6, 1936, and a new trial was denied on July 1, 1936. On the same day, the defendant filed a motion for a suspensive and a devolutive appeal, which were granted by the district judge on July 8, 1936, and made returnable on September 4, 1936. The defendant being unable to furnish a suspensive appeal bond, the plaintiff caused the property to be sold at public sale on July 18, 1936, to a third person. On August 25, 1936, the defendant filed a devolutive appeal bond in the sum of $250, signed by its attorney.

On August 27, 1936, the defendant-appellant filed a motion for an extension of the return day until November 4, 1936, stating in his application that the clerk of the district court was "unable to get the voluminous transcript ready by the time fixed for the said return day." Annexed to the petition for the extension of time is a certificate of the clerk of the district court in which he states that the work in his office "was so congested that it is impractical to get the transcription in the above entitled and numbered cause ready for the Supreme Court by September 4, 1936." Based upon this certificate, and the petition of the defendant and appellant, we extended the return date to November 4, 1936.

In the motion to dismiss the appeal, counsel for the plaintiff and appellee calls our attention to the unusual delay in filing the devolutive appeal bond by the defendant and appellant. There is annexed to the motion to dismiss an affidavit of the clerk and the deputy clerk of the district court, in charge of preparing the transcript, to the effect that the transcript would have been prepared and ready to be filed in this court on September 4, 1936, the original return day, had the defendant and appellant, within a reasonable time after July 8, 1936, perfected his devolutive appeal by filing the bond; and that the original certificate of the clerk merely certified that his office was unable to prepare the transcript between August 25, 1936 (the date the devolutive appeal was perfected), and September 4, 1936.

From the foregoing facts, it appears clear to us that it was entirely the fault of defendant and appellant that the transcript was not prepared and filed in this court on September 4, 1936, the original return day. The unusual delay of seven weeks in filing the devolutive appeal bond by the defendant and appellant made it impossible for the clerk's office to prepare the transcript between August 25 and September 4, 1936. Therefore, the necessity for asking for an extension of time was due entirely to the procrastination of the defendant and appellant. Under such circumstances, the appeal should be dismissed. Knox v. Yazoo M.V.R. Co., 135 La. 417, 65 So. 595; Oertling v. Commonwealth Bonding Casualty Co., 134 La. 26, 63 So. 611; Martel Apparatus Co. v. Lafayette Sugar Refining Co.,158 La. 727, 104 So. 632; Thibodeaux v. Cayard, 52 La.Ann. 1374, 27 So. 737; Thibodaux v. Raggio, 52 La.Ann. 1352, 27 So. 738; Hillard v. Taylor, 114 La. 883, 38 So. 594; Lacroix et al. v. Camors et al., 34 La.Ann. 639; Chretien v. Poincy, 33 La.Ann. 131; Succession of Kuntz, 33 La.Ann. 30; and Lacroix v. Bonin, 33 La.Ann. 119.

For the reasons assigned, the motion to dismiss the appeal is sustained and the appeal is dismissed, at appellant's costs.