174 La. 232

#### NAEF v. MILLER-GOLL MFG. CO.

No. 31398.

Supreme Court of Louisiana.

Nov. 3, 1931.

On Rehearing Feb. 29, 1932.

*33Henry W. Robinson and F. B. Freeland, both of New Orleans, for appellant.

A. D. Danziger, Daniel Wendling, and Albert B. Koorie, all of New Orleans, for ap-pellee.

BRUNOT, J.

This is an appeal from a judgment denying the application of the plaintiff for the appointment of a receiver of the defendant corporation, but reserving to plaintiff the assertion of such rights as she may have by way" of injunction or mandamus. The judgment was read and signed in open court on May 18,1931. The order of appeal was granted and perfected May 25,1931. The order makes the appeal returnable to this court on July 14,1931.

The motion to dismiss is based upon section 4 of Act No. 159 of 1898, and the case of Louque v. Hercules Oil Co., Inc., et al., 165 La. 143, 115 So. 416, 417.

In answer to the motion to dismiss the appeal the plaintiff directs the court’s attention to the fact that, in the cited case, the appeal was from an order appointing a receiver, while in this case the situation is reversed, and, therefore, the functions of the corporation are not suspended by the judgment appealed from. It is contended that it was the legislative intent to authorize the summary process only in cases where the judgment suspends the functions of the corporation. It is also contended that the error in fixing the return day is an error of the court, and that litigants will not suffer for errors of the court or its officers, it being beyond their control.

The pertinent part of section 4 of Act No. 159 of 1898 is quoted in the opinion in the Louque Case. We excerpt from that opinion the following:

> “The receiver moves to dismiss the appeal upon the ground that section 4 of Act 159 of 1898, fixes the return day for an appeal from a judgment such as was rendered in this case, and that the order of appeal entered by the judge of the civil district court violates the provisions of section 4 of that act.

> “We think the motion to dismiss the appeal is founded upon a mandatory provision of law, and it should be sustained.

> “The pertinent part of section 4 of Act 159 of 1898, follows : ‘Any person or persons who by affidavit appear to be interested, on giving bond in a sum to be fixed by the court, may appeal on the face of the record from any order appointing, or refusing to appoint, a receiver, granting, or refusing to grant an injunction as aforesaid; such an appeal when perfected shall have the effect of suspending the functions of such receiver, except to perform such administrative acts as may be necessary for the preservation of the property; provided that such appeal must be taken and perfected within ten days from the entry of the order appointing or ‘refusing to appoint a receiver, or granting or refusing to grant an injunction. Such appeal *shall be returnable in ten clays from the date of such order,*and shall be tried by preference in the appellate court.’ (Italics by the court.) ■

> “Section 4 of Act 159 of 1898, has not been amended or affected by subsequent legislation, and the provision of the section relied upon by mover is clearly mandatory.”

Whether the court appoints or refuses to appoint a receiver, the appeal must be made returnable to this court within ten days thereafter.

With respect to the return day, the section is mandatory, and it must be enforced as written regardless of our disagreement with the wisdom of the Legislature in applying the rule alike in eases where the judgment appoints or *refuses*to appoint a receiver.

The error in fixing the return day is chargeable to both the appellant and the court. Its correction was not beyond- the control of the appellant, who might have had the order conform to the requirement of the statute, but who inadvertently omitted to do so. For this reason, the fixed jurisprudence of this state with respect to errors of the court or its officers which are beyond the *34control of a litigant cannot be successfully invoked by this appellant.

For the reasons stated the motion to dismiss this appeal is sustained, and the appeal is therefore dismissed.

On Rehearing.

O’NIELL, C. J.

 The purpose in granting a rehearing in this case was to reconcile the decision which we had rendered in the case, and in Louque v. Hercules Oil Co., 165 La. 143, 115 So. 416, with the jurisprudence to the effect that, where the law makes it the duty of the judge to fix the return day of an appeal, within certain limitations, and he makes a mistake in his order fixing the return day, the appeal should not be dismissed on that account, unless it appears that the mistake was induced by or imputable to the appellant or his attorney. It is so provided in article S98 of the Code of Practice (section 11 of Act No. 45 of the Extra Session of 1870), and our reports are full of decisions to that effect. But that rule applies only to cases where the judge- is given the authority- — and is in fact required — by the provisions of Act No. 106 of 1908, p. 163, to fix the return day in his order granting the appeal, which return day shall be not less than fifteen nor more than sixty days from the date of the order of appeal, except by consent of the parties. That is the general rule, but it does not apply to an appeal from an order appointing or refusing to appoint a receiver to take charge of the affairs of a corporation, because, as we pointed out in Louque v. Hercules Oil Co., an appeal from such an order is governed by section 4 of Act No. 159 of 1898, which declares: “Such appeal shall be returnable in ten days from: the date of such order, and shall be tried by preference in the appellate court.” The judge who grants an appeal from an order appoint-ing or refusing to appoint a receiver has no authority whatever to fix the return day. All that the judge has authority to do in such a case is to grant the appeal, on condition that the appellant shall furnish an appeal bond for the amount fixed by the judge; the return day is fixed by the statute itself, which is applicable to all appeals from orders appointing or refusing to appoint a receiver.

 In this ease it appears that the attorneys for the appellant presented to the judge a written motion for an appeal, together with a written order of appeal to be signed by the judge, in which order it was said: “returnable to the Supreme Court of Louisiana on-, 1931,” etc.; which was an implied request for the judge to fix a return day for the appeal. The judge did not insert a date for the return day, but merely filled in the amount of the bond to be furnished, and dated and signed the order of appeal. The minute clerk afterwards inserted a date, in the blank space which the attorneys for the appellant had left, to represent the return day of the appeal. The minute clerk, who, according to the judge’s certificate, is not a lawyer, evidently • did not observe that this was not an ordinary*case, or one in which the judge should fix the return day of the appeal, but was a case where the law itself had fixed the return day. But the error of the minute clerk consisted merely in doing something that was unnecessary and without effect. The attorneys for the appellant are presumed to have known that their appeal was “returnable in ten days,” no matter what the minute clerk, or the judge himself, might have said of the return day. The judge in this instance made no mistake, and the mistake of the minute clerk was a matter of no importance or consequence whatever.

We do not find any precedent in our jurisprudence for applying the general rule, stated in article 898 of the Code of Practice, and in the numerous decisions on the subject, to an appeal from an order appointing or refusing to appoint a receiver. In Posner v. Southern Exhaust & Blow Pipe Co., 109 La. 658, 33 So. 641, 642, the plaintiff appealed from an order refusing to appoint a receiver for the defendant corporation, and the • judge, by mistake, fixed the return day for the appeal, and fixed it at a date more than ten days after the order of appeal. The defendant, therefore, moved to dismiss the appeal, but this court overruled the motion to dismiss because, under section 4 of Act No. 159 of 1898, the appeal would have ‘been returnable during vacation, and at that time, in 1902, the law (section 4 of Act No. 45 of Ex. Sess. of 1870) was that appeals made returnable in vacation should be returnable on the first day of the next session of the court. Hemfe Chief Justice Nicholls, for the court, said:

> “Ha'd the error not occurred, the return day of the appeal would have found this court in vacation, and this particular case not triable on appeal at chambers, but by preference in open court. Under such circumstances the appellant would have been authorized by the fourth section of Act No. 45 of the Extra Session of 1870 to have withheld filing the transcript in the case, until after the opening of this court in November, by force of the law itself. The appellees therefore suffered no injury by the error. They would be precisely where they would have been had the return day been correct.”

The decision in New Orleans, Ft. Jackson & Grand Isle Railroad Co. v. New Orleans Southern Railway Co., 124 La. 471, 50 So. 467, is not authority for the motion to dismiss the present appeal, because, in the case cited, that part of the plaintiff’s suit which asked for the appointment of a receiver was *35abandoned in the trial of the case, and the plaintiff’s appeal, therefore, was not from an order refusing to appoint a receiver.

The decisions which do support our ruling in the present ease are Kerlin v. Bryceland Lumber Co., 134 La. 463, 64 So. 289, and Louque v. Hercules Oil Co., supra. In Louque’s Case the same argument was made, and the same decisions were cited, as in the present case; and we find no reason here for overruling the decision.

Our former decree dismissing this appeal is reinstated and made the final judgment of the court.