
    
      ROST vs. ST FRANCIS’S CHURCH.
    
    Appeal from the court of the sixth district.
    The appellant has three judicial days after the return day, to file his appeal.
    No change can be made in the pleadings, without leave of the court or consent of the opposite party.
   Martin, J.

delivered the opinion of the court. The plaintiff and appellee prays that the appeal may be dismissed, because it was returnable to the first Monday of October, 1825, and the transcript was not filed into the clerk’s office till the 14th of that month.

The October term, 1825, entirely failed, two of the judges having been prevented by in disposition from meeting the third.

Admitting that the transcript of the record must be filed on the return day, into the clerk’s office, whether that be a judicial day or not, Code of Practice, 587; the transcript in this case was filed before the expiration of the three days of grace, which the law grants to the appellant in filing the transcript, and during which he may shew that he was by some accident not within his control, prevented from filing his transcript, and before the expiration of which the clerk is forbidden to certify that the transcript is not filed. Id. 589, 883.

West'n Dis'ct

October, 1826.

Those days must be judicial days, for on no other has the appellant the chance of shewing that he is not in fault.

As the certificate that the transcript is not filed, enables the appellee to have the judgment executed, and prevents the appellant from obtaining a new appeal. Id. 594, the latter must have the opportunity of shewing cause against the issuing of the certificate.

We notice on the record a bill of exceptions taken by the counsel of the defendants and appellants, on overruling their motion to have a supplemental or amended petition, which the plaintiff had filed without leave, rejected.

On this point the opinion of this court is with the defendants. Neither party can make any alteration or change in the pleadings, without the consent of his adversary, or leave of the court. Thus in the case of Robinson & al. vs. Williams, in which the plaintiff complained that the district court had acted on an amendment filed, without leave, by the defendant to the answer, we reversed the judgment of the district court, and remanded the case with directions to the judge not to admit special matter as evidence of the plaintiff's claim under this amended answer, 3 vol. 665.

Rost for the plaintiff, Baldwin & Deblieux for the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, the verdict set aside, and the case reminded, with directions to the judge, absolutely to disregard and cause to be disregarded the supplemental or amended petition of the plaintiff and appellee, and it is ordered that he pay costs in this court.  