On Motion to Dismiss.

The opinion of the court was delivered by

The plaintiff and appellee charges that the appellant having, in May, 1889, obtained and perfected an appeal returnable to this court at its July term following at Opelousas, and having failed to file the transcript seasonably, has abandoned the same, and that the transcript having been filed at the present July term, 1890, the case must be stricken from the docket, and he moves accordingly.

On the other hand, the defendant and appellant answers the charge, saying that the motion, order and bond to which reference is made, and which are in the transcript, apparently substantiate the charge; that the truth is that the same were inserted in the transcript in error by tbe justice who prepared and certified to its entire correctness, but who failed to copy in place the proper petition and order filed by the defendant in March, 1890, and the bond furnished on the same day, within twelve months from the signature of the judgment. Counsel for appellant makes oath that the.appellant dis*801covered the alleged error since the motion was filed, and that it occurred by no fault of the appellant. Prayer was accordingly made for authority to supplement the transcript so as to correct the error thus committed.

The motion to dismiss and the prayer to supplement having been filed, the former on the day of trial and the latter as soon as the revelation had .been made, but within the three judicial days following the opening of the term of the court at this place, and the certificate attached to the transcript being full and such as the appellant could have taken as truthful, the appellant was permitted to take steps to perfect the transcript. 89 An. 781.

He has done so by providing a certified copy of the proper petition of appeal and order thereon, as well as of the bond furnished, all filed fully within the twelve months following the judgment. (O. P. 1138.)

The deficiency charged was therefore corrected.

The other objections, urged by the appellee since the transcript was thus completed, have no merit.

The motion to dismiss is therefore overruled.

On the Merits.

This suit presents issues similar to those in the case of Andrus vs. Board, 41 An. 697.

For the reasons there assigned, it is ordered and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now decreed that there be judgment in favor of the defendant, dissolving the injunction and rejecting plaintiff’s demand at his cost in both courts.