Bolden v. Barnes , 4 Teiss. 295 ( 1907 )

ESTOPINAL, J.

This cause was appealed to the Supreme Court and by that Court transfered to this for want of juris-’ diction.

The decree of the Supreme Court transferring the appeal was rendered on January 21st, 1907, and became final on February 5th, 1907, the Court omitting to fix a new return day therein.

It is urged upon us that the record should have been -filed in the Court of Appeal on the next regular return day of the Court after the decree or order of transfer became final, or within three days thereafter. The return day next following the finality of the decree of transfer was February nth, 1907, and the contention is made that the appellant should have filed the record in this Court not later than the 14th of February, 1907, and that the lodging of the appeal on the 21st of February instead, is not timely.

’ In an investigation of the point urged we have found neither rule nor law requiring the filing of the record of a transferred appeal on the next return day after the finality of the decree of transfer.

The order of transfer of the Supreme Court fixes no return day, though it is doubtless within the authority of htat Court to do so. In the absence of any such fixing, however, it is our opinion that the appellant is entitled to and should be allowed a reasonable delay in which to properly lodge his appeal.

It was necessary to prepare a new transcript. Had the return day been fixed and under that fixing sufficient time was not had to prepare the record then in that case it would have been imperative for appellant to apply for additional time.

There was no necessity for such action here, since no time was fixed by the Supreme Court and none is provided by statute.

For the Court to adopt the views of the learned counsel who urges this motion would mean the assumption by it of legislative function.

The appeal was filed within a reasonable time. This is sufficient.

Motion denied.