
    J. H. Massey v. G. W. Helme.
    A devolutivo appeal was made returnable on the first Monday of November and a rule for an extont\on of time was ittod on tho 19th of the same month — Held; That where a party takes a devolutive» appeal, and fails to file the transcript by the return day, if it appears that no fault was imputable to him, bo is entitled to an extension of time.
    APPEAL from the Second District Court of New Orleans, Morgan, J.
    
      Durant & Hornor, for plaintiff and appellant.
    
      H. M. Spofford, and ¡V. H. Hunt, for defendant
   Voorhies, J.

The plaintiff is, under the circumstances of this case, entitled to an extension of time for filing the transcript of appeal.

He has taken a devolutive appeal from the judgment rendered below in favor of tho defendant on the 1st day of March last. And although the transcript might have been procured in timo for tho return day, yet the failure to do so caunot be imputed to the party as a fault. Had it not been the desire to avoid encumbering tho record with useless matter, and subjecting the court to unnecessary labor and the parties to unnecessary costs, there would have been uo occasion for the application for an extension of time.

After some time had elapsed in fruitless endeavors, on the part of the appellant, (o have an agreement entered into for the purpose of dispensing with copying in the transcript, what might bo deemed useless-matter, it was ascertained that there would not. be time left to make out the transcript. We were informed by counsel, during the argument of the present motion', that tho transcript will contain over twelve hundred pages ; and that it will be necessary to copy in it a book containing the whole correspondence of one of the parties, the greater portion of which is stated to be foreign to the issues involved. This fact, we have not the means now to ascertain ; but if such be the ease, it is obvious that the agreement proposed by the appellant was useful to tho parties as it would have been convenient to the court.

The appellant is entitled.to relief, tho more so that, were the extension of time refused, he would yet bo entitled to move below.for another devolutive appeal.

It is, therefore, ordered, that time be extended to the appellant to tho second Monday in January, on which to bring up the appeal in this ease.  