#### WEBER v. KEMP et al.

No. 1132.

Court of Appeal of Louisiana. First Circuit.

May 22, 1933.

D. J. Sanchez and Fred G. Benton, both of Baton Rouge, for appellant.

W. B. Kémp and Ellis, Ellis & Ellis, all of ..Amite, and Nicholls Pugh, of Springville, for appellees.

LE BLANC, Judge.

Defendant-appellee moves the court to dismiss the appeal granted herein on the ground that the record was filed long after the return date fixed by the order of appeal; no extension of time having been granted for any delays.

Judgment was signed in the district court *280on November 5, 1931, rejecting tbe plaintiff’s demand and dismissing bis suit at bis costs. Tbe extract from tbe minutes of court show tbat on the same day, on motion of bis counsel, be was granted an order of appeal to this court; tbe return day being fixed as of November 30, 1931. Tbe filing mark of tbe clerk shows tbat tbe record was not lodged in this court until November 14, 1932, which was one year less two weeks from tbe return day.

Counsel for plaintiff-appellant admit tbe present status of the appeal, but urge, for tbe reason tbat tbe record has never been completed because of the death of tbe court stenographer before be bad transcribed all of the notes of evidence, tbat tbe delay was not the fault of any one, and therefore tbe case should be remanded to tbe lower court for reinstatement on tbe docket of tbat court and to be tried anew. They have filed a motion to that effect, tbe averments of which are supported by various affidavits submitted therewith.

Conceding tbe verity of all that is alleged in their motion and tbe cox-rectness of all that the affidavits contain, the fact remains tbat there never was any application presented for an extension of time in order to complete tbe record, and it was filed in this court in tbe condition in which it is, nearly a year after tbe return day.

It is tbe duty of tbe appellant to see tbat tbe record is filed in this court within the time fixed for the return day of tbe appeal, and, when for some reason beyond bis control be is prevented from doing so, it is his further duty, if he cares to preserve bis appeal, to apply for an extension of time, supporting bis motion therefor by proper affidavit. This, in effect, is what is provided by tbe rules of this court as shown by rules 3 and 4 of the Rules of tbe Court of Appeal, First Circuit, which are published in 11 La. App. Report, p. 769. These particular rules, after all, are but tbe embodiment, in substance, of tbe articles of tbe Code of Practice pertaining to the filing of a record in tbe appellate court.

Applications for extension of time in which to file a record are almost invariably granted in this court on mere presentation of tbe motion with the affidavit of tbe clerk’of court attached. Had the appellant in this case been tbe least bit vigilant, be could easily have maintained his order of appeal in effect, and could, during tbat time, have taken tbe steps to have tbe case remanded as be is now seeking to do. Having failed, however, to protect his rights under the order which he had been granted, be is conclusively presumed to have abandoned bis appeal, and the appellee’s motion to dismiss must prevail. In the case of Jacobs v. Weaver & Rivers et al., 167 La. 59, 118 So. 692, the Supreme Court, in considering tbe same motion as is here presented, said: “Tbe rule is settled beyond controversy tbat, where tbe appellant perfects bis appeal, and fails to file tbe transcript on or before tbe. return day, or within the three days of grace following tbe return day, be is conclusively presumed to have abandoned tbe appeal; and this conclusive presumption can only be avoided by timely (i. e., previous) application to the appellate court for an extension of tbe return day. And in such cases the motion to dismiss can be made at any time after tbe filing of tbe transcript. Dupierris v. Sparicia, 164 La. 290, 113 So. 851; Whitney-Central Trust & Savings Bank v. Greenwood Planting & Mfg. Co., 146 La. 572, 83 So. 834.”

In the case of Wiggins v. Texas & New Orleans R. R. Co., 17 La. App. 31, 135 So. 265, this court, in passing on a motion to dismiss the appeal on tbe ground of delay in filing the record after the return day, held that tbe rule which required the appellant to have the transcript filed in tbe Supreme Court on tbe return day applies to the filing of tbe original record in this court, under section 27 of article 7 of the Constitution of 1921, which provides that: “The rules of practice regulating appeals to and proceedings in tbe Supreme Court shall apply to appeals and proceedings in the Courts of Appeal, so far as they may be applicable.”

In tbe proper enforcement of our rule we find ourselves obliged to overrule the motion to remand the case and to sustain tbe motion to dismiss tbe appeal.

Let the appeal herein be dismissed at appellant’s costs.