
    McDowell and Peck v. T. G. Read et al.
    An appellant may be'relieved where he has been prevented by circumstances beyond his control from filing the record in the appellate court in due time.
    But when his counsel had made an arrangement with the clerk of the court in the first instance to file all the appeals taken by him, the clerk of that court becomes the agent of the appellant, and his neglect is that of the appellant. C. P. art. 585.
    And if the record of appeal be not filed in due time, the appeal must be dismissed. O. P. arts. 589, 590, and 883.
    APPEAL by plaintiffs from the Fourth District Court of New Orleans, Strawbridge, J.
    
      W. C. Micou, for appellant.
    
      Mount, for appellee.
   The judgment of the court was pronounced by

Slidell, J.

The appeal in this case was made returnable on the 4th Monday of January? 1849. After the three judicial days had expired, to wit, on the 6th February, the appellee filed the transcript, and at the same time an application in writing for the dismissal of the appeal.

The only excuse presented by the appellants for the failure to file the transcript is, that their attorney had an understanding with the clerk of the district court, that he, the clerk, would file with the clerk of this court all transcripts in appeals taken by his clients ; that he also had an understanding with the clerk of this court to receive and file all such transcripts without previously requiring security for costs; and that the clerk of the district court had omitted the seasonable filing of the transcript, in consequence of a mistake induced by the acts of the opposite attorney. A statement made under oath by the clerk of the district court has been submitted by the appellant; and a counter statement is made under oath by the opposite attorney. Supposing, for the purposes of the present question, that such an investigation is admissible, we are of opinion that the appellant has not made out such a case as would authorize us to refuse a dismissal of the appeal, under the articles 588, 589, 590, and 883 of the Code of Practice. The statements of the district clerk and the opposite attorney are conflicting and antagonist; and it is also to be observed, that while the former professes to give impressions, the latter speaks positively and unqualifiedly.

The absence of a seasonable filing, is at least prima facie evidence of neglect. And if the neglect was on the part of the clerk of the district court, he was in that matter the mere agent of the appellants, and his negligence is theirs. The preparation of the transcript pertained to his official functions; his promise to file it in the Supreme Court was a mere personal matter between him'and the appellant. C. P.585.

It was held in Kirkland v. His Creditors, 8 New Series, 597, that an appellant may be relieved where he has been prevented by circumstances beyond his control from obtaining and filing the transcript; but certainly no such showing is made here.

It is therefore decreed, that the appeal be dismissed, at the costs of the appellants.  