
    No. 7324.
    State ex rel. H. W. Fairchild vs. Talbot Stillman.
    Judgments rendered by this court while holding one of its country terms only become final on the expiration of three judicial days from their rendition.
    The last judicial day on which an application for a rehearing may be made does not expire at'GK o’clock, a. m. merely because this eojirt adjourned sine die at that hour on that day. The application is in time if filed at any time during that day.
    ^PPLICATION for a mandamus.
    
      Frank P. Stubbs for relator.
    Respondent in person.
   The opinion of the court was delivered by

Spencer, J.

At its Monroe term, 1878, this court affirmed the judgment of the district court in favor of plaintiff in the suit of Fair-child vs. McEnery. Our opinion and decree were delivered July 20; the 21st was Sunday. The court sat bn 22d, 23d, and 24th. The session on Ü4th commenced at 6, and ended 6J o’clock, a. m., when the court adjourned sine die. At 9| a. m. oí 24th, the defendant, McEnery, filed a formal application for rehearing.

The relator, Fairchild, demands that the clerk send down to the court a qua our decree for execution, alleging its finality by reason of the application for rehearing being filed too late.

Two 'questions are presented:

1. At the country terms of this court, is any delay given by law for applications for rehearing ?

2. If so, had that delay expired when the said application was ■filed?

The first question arises out of the fact that the original article '911 of the Code of Practice, granting three days delay, is omitted from the Revised Code of 1870 ; and what was once a mere amendment thereto, relative to cases in New Orleans, has been substituted therefor. It is contended that therefore there is now no law granting delay for Tehearings except in cases tried in New Orleans.

We think the omission the result of inadvertency or carelessness ; ■and that the existence of the.right sufficiently results from other provisions of the Code. Thus article 913 provides that “ while the court is deliberating on this application (for rehearing), the three days allowed .for rendering a judgment final do not run.” Here is a clear enunciation that our judgments do not become final until after the lapse of three days. We gather from other provisions of the Code in analogous cases ■that these three days are judicial days. See arts. 911 and 558, C. P.

The second question is, must the 24th'July, as a judicial day, be considered as having expired at 6J o’clock a. m., the hour of the court’s adjournment? We think not; an application filed at any time on that day would have been clearly sufficient and in time had the court met again on the 25th. Why should there be any difference in the cases of an adjournment to the next day and one sine die ? In either case the party 'is entitled to three judicial days, but only three. If relator’s position be correct, the application would be too late in either case, if filed after the hour of adjournment. It is not now the practice to require applications ■for rehearing to be filed in open court. We therefore hold that the defendant had the whole of the third day to apply, and did so in time. 'The mandamus is refused at costs of relator.

Dissenting Opinion.

Manning, C. J.'

In my opinion the judgment became final upon its ■rendition. By the Code of Practice, as it was before 1857, dll judgments of this court became final after three judicial days, art. 911. In that year, this article was amended by excepting from this rule nine designated parishes, of which Ouachita is not one, and in those, appeals-were not to become final until the lapse of six days. Sess. Acts 1857, p. 184.

Inthe following year, it was enacted that all judgments of this court, rendered at New Orleans, should become final only after the lapse of six days. Sess. Acts 1858, p. 65. By the law as thus amended, appeals decided at New Orleans became final after six days, and those decided elsewhere after three days. But in the revisáis of 1870, art-911 provided for appeals decided here, giving six days before they became final and wholly omitted any provision for appeals at the country terms. This omission is so pointed, considering the amendatory acts-of 1857 and 1858, that it must have been designed. And that it was an omission of significance and authority, and was so considered, is apparent from the fact that the legislature at its recent session amended art-911 of the Code of Practice by providing that appeals rendered by this court “at other points where the court may be holden” beside New Orleans, shall be final only after three judicial days from rendering them. This Act was promulgated only two days ago. Official Journal of Feb. 8. Sess. Acts 1879, p. 33.

The judgments of this Court are final when they are pronounced unless the law otherwise specially orders. The Revised Code of Practice provided that appeals decided here should not become final until after six days, and made no provision for any delay as to judgments-upon any other appeals. Therefore this appeal, decided at Ouachitalast year, was final without any delay.  