
    (38 South. 19.)
    No. 15,453.
    LOUISIANA RY. & NAVIGATION CO. v. MILLER.
    (Feb. 13, 1905.)
    APPEAL — EXTENSION OF TIME — FAILURE TO FILE RECORD.
    1. The appellant did not timely apply for an extension of time within which to file the record of appeal.
    2. I-Iis right of appeal was lost, the record not having been filed until after the return day.
    3. The appellant cannot be heard under the order of appeal which he failed to comply with.
    (Syllabus-by the Court.)
    Appeal from Twenty-Eighth District Court, Parish of Jefferson; Jerome Louis Gaudet, Judge.
    Action by the Louisiana Railway & Navigation Company against Henry Miller. Judgment for plaintiff, and defendant appeals. Motion to rescind order extending return day, and to declare, appeal abandoned.
    Granted.
    Robert James Perkins, for appellant. Foster, Milling, Godchaux & Sanders, for appellee.
   BREAUX, O. J.

We are informed by the-recital contained in the motion of plaintiff and appellee that the original return day off the appeal in this case was November 21, 1904. This averment is not controverted by defendant or his counsel.

It appears that, on the return day before mentioned, appellant moved for and obtained' from the Supreme Court an additional delay within which to file the transcript of appeal. This delay was granted up to and including the 20th day of December, 1904.

Before this delay had elapsed, to wit, on December 17, 1904, appellant bad applied for- and obtained another delay from the said court, to wit, on December 17, 1904, appellant obtained a delay to the 15th day off January, 1905. It happened that, through appellant’s inadvertence in fixing dates in his. motion, the delay elapsed on a Sunday. This fact cuts no figure, for appellant did not file-his transcript at any time thereafter, but, instead of availing himself of the last extension above mentioned, appellant moved' for and obtained another extension for returning the appeal to February 6, 1905. This-motion was made one day after the last day of the extension that had been previously-granted.

Under the well-established rule of practice, the last extension could not avail appellant in any way. His right to perfect his said appeal was lost immediately after the return day had elapsed.

The motion for an extension was made as. it usually is made; that is, ex parte. Such a motion is granted without specially looking into the facts, as it is well understood that it cannot well be made to the prejudice off the appellee, who has the right to object, and to bave it rescinded if not granted in accordance with the rule of practice.

Ordered, the order granted on the 17th day of January, 1905, extending time within which to file the transcript to February 6.. 1905, is recalled, rescinded, and canceled; the said appeal having lapsed by failure to timely file the transcript of appeal.  