58 So. 895 | La. | 1912
Lead Opinion
Statement of the Case.
Plaintiff sued, in the Tenth justice court, parish of Natchitoches, claiming, as owner, two bales of seed cotton, valued at $100, which had been seized under an execution obtained by defendant against Luke Guillory, and enjoined the seizure; whereupon, and after plaintiff had'furnished a bond of indemnity, Felix Guillory intervened, asserting a lien and privilege on a portion of the cotton, for his wages, and also enjoined. The case was fixed for November 17, 1911, when it was continued, at the instance of defendant — all parties consenting —to November 27th, at which date, at the instance of plaintiff’s counsel, it was continued to December 4th, when, neither plaintiff nor intervener appearing, in person or by counsel, there was judgment for defendant, rejecting the demands of plaintiff and of intervener, dismissing their injunction, condemning plaintiff and the surety on his injunction bond, in damages, in the sum of $20, and ordering the cotton to be sold to satisfy defendant’s execution. On December 7th plaintiff obtained an order for a suspensive-appeal; on December 8th he and the intervener were notified of the judgment, and defendant was notified of the appeal; on December 14th plaintiff filed a bond, in the sum of $150, containing the recital:
“Now the condition of the above obligation is such that whereas the above-bounden John Abraham has obtained an order for a suspensive and devolutive appeal to the Eleventh D. C., returnable, according to law, at the next session of said court,” etc.
“Where a suspensive appeal has been dismissed, on account of the failure to file the record within the return day, the appellant cannot, afterwards, take a devolutive appeal from the said judgment.”
And the motion having been overruled, and an application for a rehearing of the same having been denied, he presented to this court the petition which we are now considering, for writs of certiorari, mandamus, and prohibition. The learned trial judge says, in his return:
“The record shows that, upon the trial of the case, the motion to dismiss the suspensive appeal was heard and sustained. The appellant, then, had a new order issued, for a devolutive appeal, and gave bond for same, and same was filed, whereupon, as the record shows, the motion to dismiss was filed, for the reason that the suspensive appeal had been abandoned. My understanding of the statute and the law, and certainly the equities in the case, was not that the suspensive appeal was abandoned. It is true that the transcript was not filed within 10 days, as required by law, but before me it was clearly shown that appellant used every effort to have the same filed within the required time, and the failure was by either neglect of the magistrate; in sending same, or by some delay in the mail, or, perhaps, by the clerk in filing same as soon as received. I could not locate who was responsible for the delay. Act' Ño. 197 of 1904, p. 431, is the law that I tried to apply in the case,” etc.
Respondent annexes to bis return a letter, of date December 18, 1911, from the attorney originally employed by plaintiff, to his present counsel, who seems to have been employed after the delay for the return of the suspensive appeal had expired, in which the writer explains that his failure and that of his client to be present at the trial, on December 4th, was owing to some misunderstanding on his part.
Opinion.
It is also well settled, with respect to such appeals, that the functions of the clerk of the district court are limited to the preparation of the transcript and its delivery to the appellant, and that it is the appellant who must return the same “into the Court of Appeal on the return day thereof.” State ex rel. Comeau, Adm’r, v. Clerk, 46 La. Ann. 1289, 16 South. 207; Girod v. Monroe Brick Co., 126 La. 387, 52 South. 550.
The jurisprudence thus referred to is founded on specific provisions of the Code of Practice. Thus, articles 585, 587, 588, 590, and 594, provide: That, after the appeal has been allowed and the surety given, “the clerk shall make the transcript, in order that the same may he delivered to the appellee” (meaning appellant). That “the appellant must return * * * the transcript * * * into the Court of Appeal, on the return day thereof.” That, “if the appellant neglect” to file the transcript in the appellate court within the delay allowed, the appellee may have execution on his judgment, or final judgment on the appeal, by
The articles mentioned are, however, found in part 11, under title 1, of the Code of Practice, and the first article under that title reads as follows:
“Art. 124. The rules of proceeding contained in the present title relate only to the district and parish courts of the state, when in the exercise of their ordinary jurisdiction. Special rules are hereafter established for courts of probate and justices of the peace.”
See Wertheimer v. Favalora, 116 La. 490, 40 South. 848; Thomas v. Goodwin, 120 La. 508, 45 South. 406; Johnson v. Murphy, 124 La. 144, 49 South. 1007; Bain & Co. v. Oliphant, 124 La. 585, 50 South. 588.
Title 2 relates to proceedings in the Supreme Court; title 3, to proceedings in the courts of probate; and title 4, to proceedings before justices of the peace. And under the title last mentioned, we find articles 1128, 1131,1132, 1133, 1134, and 1135, among others relating to appeals (article 1131, as amended and re-enacted by Act No. 129 of 1888, and articles 1128, 1134, and 1135, as amended and re-enacted by Act No. 226 of 1908) and providing in substance as follows:
That appeals are allowed from judgments of justices of the peace (the parish of Orleans excepted) in all civil cases, irrespective of the amount in dispute, and are to be made returnable within 10 days after service of citation of appeal, allowing one additional day for such service for every 10 miles between the place of rendering the judgment and that of the appellee’s residence; that no appeal shall stay execution, unless taken three days after final judgment, or within three days after notice, if rendered in the absence or on default of one of the parties, and unless defendant give bond for an amount exceeding by one-half that for which the judgment is rendered, the judgment not to become final until action by the court upon any motion for new trial which may have been made within the delay allowed by law or the rules of court; that “if the appellant will' not, or cannot, give such security, the justice of the peace shall allow him an appeal if he give security, in a sum to be fixed by said justice, sufficient to pay the costs, but in this ease, the appeal shall not stay execution”; that, if the party having cause of complaint allow 12 months to elapse after the time “allowed for an appeal, without having taken one, he shall no longer be allowed to appeal, but the judgment shall acquire the force of res judicata” (the time allowed in the parish of Orleans being 10 days); that “the justice of the peace, after receiving the appeal bond and security of the appellant, shall issue a citation to the appellee directing him to appear before the appellate court on or before the day on which the appeal has been made returnable,” etc. (no citation being required when the judgment has been rendered in the presence of the parties); that “the justice of the peace
Rehearing
On Rehearing.
The chronology of this case is as follows: December 7th, ‘order for a suspensive appeal granted; December 14th, suspensive appeal bond filed; December 27th, appeal returned; February 3d, appellee moves to dismiss the appeal; February 26th, the justice of the peace grants a devolutive appeal; February 28th, suspensive appeal dismissed, and devolutive appeal filed.
On March 11th, appellee moved to dismiss the devolutive appeal, which motion having been denied, application has been made to us for prohibition, mandamus, and certiorari.
“The rules of proceedings contained in the present title, relate only to the district and parish courts, when in the exercise of their ordinary jurisdiction. Special rules are hereafter established for courts of probate and justices of the peace.”
Article 594 is “contained in the present title,” i. e., title 1. Hence the provision of that article that, “on the certificate of the clerk that the record has not been brought up by the appellant, the appeal shall be considered as abandoned, and the appellant shall not be afterward allowed to renew it,” can have no application whatsoever to appeals taken from justices of the peace. Necessarily, then, decisions interpreting article 594 do not apply to the present controversy.
Title 4 of the Code of Practice governs proceedings before justices of the peace, and chapter 4 of that title (articles 1128-1138) regulates appeals from judgments rendered by them. Articles 1128, 1134, and 1135 were amended and re-enacted by Act No. 226 of 1908, p. 343; article 1131, by Act No. 45 of 1910, p. 70; and article 1132, by Act No. 46 of 1910, p. 71.
It will thus be seen that no law regulating appeals from justices of the peace contains any provision at all resembling O. P. art. 594. There is not the remotest suggestion that the failure of the justice of the peace to file the appeal on or before the return day (a duty imposed solely upon him by law) shall be construed as an abandonment by appellant of his constitutional right of appeal.
Light will be thrown upon this discussion by comparing the articles of the Code of Practice regulating appeals from the district court with those, articles regulating appeals from justices of the peace. Suspensive appeals from each must be taken within 10 days; devolutive, in one year. The amount
The right of appeal is a constitutional right, and though it can be exercised only in the manner pointed out by law, it is equally true that, when the law points out a single contingency under which it is conclusively presumed that the appeal has been aban;, doned, the courts are powerless to add other contingencies. Though no valid complaint can be urged against a law which says to appellant, “you must file, within a designated time, under pain of losing your right of appeal, the transcript placed in your hands by the clerk,” it would be a grave injustice for the courts to read into a law, requiring the justice of the peace to file the record within a designated time, the penalty that the failure of the justice of the peace to discharge this duty must be considered an abandonment by appellant of his right of appeal.
The question of the validity of the judgment dismissing the suspensive appeal is not before us.
For these reasons, it is ordered, adjudged, and decreed that the judgment complained of remain undisturbed, and that relator’s demands he rejected, and this proceeding dismissed, at his cost.