61 So. 155 | La. | 1913
Plaintiff sues Thomas A. Craft, John W. Williams, O. L. Lee, residents of Vernon parish, James Durham, and W. J. Sanders, residents of Calcasieu parish, as indorsers on a certain promissory note held by it. Durham and Sanders excepted, to the jurisdiction of the court, and their exceptions were sustained. There was no appeal applied for as to these two defendants. Nevertheless citation of appeal was served on Sanders, and he is mentioned in the bond of appeal. As his name was not mentioned in the motion for appeal, and as more than 12 months have elapsed after judgment in his favor was rendered and signed, the appeal will be dismissed as to him.
[1]Two of the defendants, O. L. Lee and Thomas A. Craft, move to dismiss the appeal on the grounds:
“First, that more than. 12 months had elapsed since the rendition of the judgment of the honorable district court, and no appeal was taken; second, that' no citation of appeal has been served on them or either of them.”
The first ground in appellees’ motion is an appearance, and they cannot therefore be heard on the second ground, the want of citation. In Nicholson v. Jennings, 27 La. Ann. 432, we say:
“In this court the defendant pleads defective citation and prescription. The pleas are inconsistent. Pleading prescription is an appearance.”
And again in the Succession of Mrs. Baumgarden, 35 La. Ann. 127:
“After appearance by appellee it is too latí to complain of want of citation. This is a self-evident proposition, needing no argument in its supnort.” Jones v. Shreveport, 28 La. Ann. 835; Lee v. Goodrich, 21 La. Ann. 278; Foute v. New Orleans, 20 La. Ann. 22.
On the Merits.
There were other exceptions, but these two were the only ones disposed of; and the ruling on the second is now before us for review. In sustaining the exception of no right of action the court says:
“The law and the evidence being in favor of defendants and against the plaintiff, be, and it is hereby ordered, adjudged and decreed that the exception of no right of action be and the same is hereby sustained, and the plaintiff’s suit is dismissed at his cost.”
On the trial of the exception under consideration, plaintiff moved that said excep
It is therefore ordered, adjudged, and decreed that the appeal herein is dismissed in so far as W. J. Sanders is concerned.
It is further ordered, adjudged, and decreed that the judgment appealed from is reversed as to the other appellees, and the case is remanded to be proceeded with in accordance with law; costs of appeal to be paid by appellees, Craft, Williams, and Lee.