142 So. 356 | La. Ct. App. | 1932
Lead Opinion
This matter comes before us on rehearing. In our original judgment we dismissed the appeal on the ground that the return day of the appeal was fixed by the trial judge and the transcript was lodged here in excess of the time allowed by law. The appellee moved to dismiss the appeal upon two grounds:
First, that the appellant petitioned the court for an appeal, but did not have a citation of appeal served upon the appellee, or his counsel.
Second, that the judge of the lower court, in the order granting the appeal, fixed the return day of the appeal beyond the time allowed by the provisions of Act No.
Taking up these issues in the above order, it appears from the record that the petition for the appeal was filed in the open court, and at the same term of court at which the judgment had been rendered. In the case of Almerico v. Louis A. Billa Co.,
The first ground of the motion to dismiss is, therefore, clearly without merit.
Passing to the second contention, we observe that the judgment of the First city court for the city of New Orleans was rendered and signed on February 8, 1932. The petition for a suspensive and devolutive appeal was filed on February 12, 1932, and the trial judge, in the order granting the appeal, fixed the return day as of February 23, 1932, and the transcript was filed here on that day. The amount in dispute is the sum of $250, and therefore the case falls within the concurrent jurisdiction of the civil district court for the parish of Orleans and the First and the Second city courts of the city of New Orleans, as provided in article 7, § 91, par. 3, and section 92 of the Constitution of 1921, the relevant part of which reads as follows: "* * * Said court [First and Second City Courts of the City of New Orleans] shall also have jurisdiction concurrently with the Civil District Court of all suits for moneyed demands above one hundred dollars and not exceeding three hundred dollars, exclusive of interest; provided, that such cases shall be tried and the testimony and evidence therein shall be taken in the same manner as cases tried in the Civil District Court, and the appeal in the Court of Appeal shall be tried upon the original record thus made up and shall not be tried de novo."
In order to regulate the practice in the *357
city courts of the city of New Orleans, and to carry into effect sections 90, 91, and 92 of article 7 of the Constitution of 1921, the Legislature passed Act No.
This act, in section 1, further provides: "* * * The manner and form of proceedings before the City Courts of this State in Cities having over one hundred thousand inhabitants, in cases where said Court has concurrent jurisdiction with District Courts of all suits for moneyed demands above one hundred dollars, and not exceeding three hundred dollars, shall be governed by the general laws regulating proceedings before the District Courts, provided that delays for answering shall be three days only, Sundays and Holidays excluded, that all exceptions and answers must be filed at the same time, that no preliminary default shall be necessary prior to judgment, and that judgments may be signed immediately after rendition, and that there shall be no right to trial by jury in such cases before said City Courts."
Therefore the procedure before the city courts in New Orleans in cases of this kind is the same as that prevailing in the civil district court, except as changed by Act No.
Now, is the first above-quoted language of the statute with reference to allowing appeals and the return thereof clear and definite in its meaning? If so, the law requires the courts to apply the statute as written. Article 13, Rev. Civ. Code. But if the words of the statute are doubtful, or dubious, and the language ambiguous, the courts have a right to seek the true meaning, or legislative intent, by considering other phrases and sentences in the act, and what is clear in other statutes upon the same subject-matter, as well as the reason or cause which induced the Legislature to enact the statute. Articles 16, 17 and 18, Rev. Civ. Code.
It appears that the language in question is susceptible of three different interpretations:
First, the construction which has been placed upon it by the judges of the city courts of New Orleans and the members of the bar practicing there during the last eleven years, to the effect that the appellant is allowed ten days, exclusive of Sundays, from the rendition and signing of the judgment to file his motion, or petition for a suspensive and/or devolutive appeal, and that the trial judge is given the right, by the statute, to fix the return day within ten days from the signing of the order granting the appeal.
Second, the construction placed upon it by this court in its original opinion that the appellant shall apply for his devolutive or suspensive appeal, or both, within ten days, exclusive of Sundays, from the date of the rendition of the judgment, and the return day to the Court of Appeal shall likewise be fixed within that period of time by the trial judge; in short, that the language is mandatory, requiring appellant to apply for the appeal and to lodge the transcript in the Court of Appeal within ten days from the date of the rendition and signing of the judgment, exclusive of Sundays.
Third, the construction that the appellant shall have ten days, exclusive of Sundays, from the rendition and signing of the judgment, to file his motion or petition for a suspensive and/or devolutive appeal, which shall be returnable to the Court of Appeal, and that the return day shall be fixed by the trial judge in the order granting the appeal, according to the practice in the civil district court, as provided in Act No.
The uncertainty in the meaning of the language arises primarily from the position of the phrase "within ten days" and from the punctuation of the sentence, the words, "and be returnable to the Court of Appeals," being set off with commas, indicating a break in the continuity of thought, and, as a result, those who have read and studied the sentence in question have reached different conclusions as to its true and correct meaning. We thus conclude that this portion of the statute is ambiguous, and, consequently, the court is called upon to determine just what was the true legislative intent.
We shall first review the decisions which have interpreted the act and start by saying that Act No.
In Anselmo v. Pisciotta,
In the case of Estate of Sassinot v. Demourelle, supra, where the judgment was rendered on June 11, 1924, and a devolutive appeal applied for on September 16, 1924, the court held that the right to file a motion or petition for a devolutive appeal was limited to ten days, as provided by the statute. The court said:
"In our opinion, Act
"It follows, therefore, that Act
In Hendren v. Crescent City Seltzer Mineral Water Co., Inc.,
Both the Supreme Court and this court, in a number of cases, have held that, in computing the time allowed to apply for a suspensive appeal, neither the day on which the judgment was signed, nor the tenth day, is included. See Garland v. Holmes, 12 Rob. (La.) 421, and Hendren v. Crescent City Seltzer Mineral Water Co., Inc., supra.
In the case of Madison Lumber Co. v. Alson,
In Almerico v. Louis A. Billa Co. et al.,
The court further quoted from Hendren v. Crescent City Seltzer Mineral Water Co., Inc., supra, the following language: "In counting the ten days for an appeal under said Act the Court must exclude Sundays and the tenth or last day, granting the appellant the whole of the eleventh day, after the rendition of the judgment."
In this case (Almerico v. Louis A. Billa Co.) the appellee further moved to dismiss the appeal on the ground that the appeal was made returnable on November 18, 1929, and no transcript was filed on that day, but, on the day following the return day, an application for an extension of time to file the transcript was made, and that, thus, the application came too late. The court pointed out that, under article 883 of the Code of Practice, the appellant was allowed three days' grace within which to make application for an extension of time, citing Sammons v. N. O. Railway Light Co.,
From the foregoing authorities it appears that, in spite of the language of the statute that "appeals shall be allowed, * * * within ten days, exclusive of Sundays, from the rendition of the judgment," the statute being silent on the subject of extension of time, but very definite that the appeal shall be taken within ten days, the courts have interpreted the language so as to allow three days of grace within which to apply for an extension, as provided by article 883 of the Code of Practice, and also that, under article 318 of the Code of Practice, the last or terminal day is not to be counted in calculating the ten days.
In a series of cases this court has held that the appellant shall have the right to take either a devolutive or suspensive appeal within ten days after the rendition of the judgment. Hendren v. Crescent City Seltzer Mineral Water Co., Inc.,
In Richardson v. Caloavello, supra, the appellee moved to dismiss the appeal on the ground that he had not been served with a citation of the appeal. In denying the motion to dismiss the appeal, the court pointed out that the motion for the appeal was made in open court, at the same term time, and said: "Considering these facts and the recent statute just noted, it follows that the appeal herein taken by motion in open court, without citation, and in accordance with Arts. 573 and 574, C. P., was, in all respects, regular."
From the foregoing authorities it also appears that it has been the policy of this court, in interpreting the provisions of Act No.
Now in cases before the civil district court, which has concurrent jurisdiction in this class of cases, the appellant has a right to take a suspensive appeal within ten days and a devolutive appeal within one year from the signing of the judgment, the court having the right to fix the return day within not less than fifteen, nor more than thirty, days, as provided in Act No.
It is true that the Legislature has restricted the appellant's right to appeal devolutively within ten days from the rendition of the judgment in these cases. Why this change was made does not concern us here, although a reading of the act makes it apparent that the purpose of the Legislature was to accomplish the quick disposition and determination of this class of litigation. It is sufficient to say that the language of the statute, in making the change, was clear and definite, and the courts applied it as written. Estate of Sassinot v. Demourelle, supra. But it cannot be said that the language of the act clearly and unequivocally limits the return day to ten days from the rendition of the judgment. We might say that the procedure for taking a devolutive appeal is practically the same as that required for a suspensive appeal, the preparation of the application for either requiring about the same amount of time and effort. But this is not true of the preparation of the transcript, for each case is different, and it would be reasonable to provide that the trial judge, before whom the evidence was taken, should have some latitude in fixing the time for the preparation of the record of appeal. Certainly it cannot be said that the Legislature would act arbitrarily and unreasonably, and, in the absence of clear and unambiguous language, we will not assume that the intention was to make so radical a change as to require that an appeal must be perfected and the transcript lodged in the appellate court within ten days of the day on which the judgment appealed from was rendered.
The appellee says that the purpose of the Legislature was to effect the speedy disposition of this class of litigation. In the case of N. O. Motor Co., Inc., v. Kelt,
Likewise, we say here that to hold that the Legislature intended that the appellant should apply for his appeal and file the transcript in the court of appeal within ten days from the rendition of the judgment would be "at the expense of the rights of litigants," because that period of time for both purposes is obviously insufficient, and is less time than is allowed for the return to this court of any other appeal from the city courts, even those in cases involving less than $100, which are tried on the original pleadings and de novo, and therefore no transcription of the testimony is necessary. After the judgment is rendered in cases involving over $100, the stenographer must transcribe his notes and file the testimony, in order that the clerk can make up the transcript. The purpose of Act No.
While it is true that there never has been a case before this court in which it was contended that the appeal shall be returnable within ten days from the rendition of the judgment, exclusive of Sundays, nevertheless, this court, since 1921, in a number of cases, has held that the appellant is allowed *360 ten days from the rendition of the judgment, exclusive of Sundays, within which to apply for a devolutive or a suspensive appeal. For this court to say now that the appellant must, not only apply for an appeal within ten days, but also perfect it by filing the transcript or the record in this court, would be, in effect, practically depriving him of ten days within which to apply for his appeal, because it would be physically impossible to apply for the appeal on the last, or tenth, day, and have the transcript lodged in this court within that same period of time.
In the case of Tessier v. Jacobs,
In the light of the foregoing authorities, we shall now direct our attention specifically to the sentence in question and present our analysis of it.
The words "be returnable" do not necessarily carry with them any reference to time and they may be used in the sense of "directed to," or "addressed to." In section 24 of article 7 of the Constitution of 1921 it is provided, with reference to appeals to the Courts of Appeal, that such "appeals shall be returnable to the respective domiciles of said courts." Here the words, "be returnable," are used not in connection with time, but entirely to designate the place to which the appeals shall be sent.
In section 20 of the same article of the Constitution we find that the word "returnable" is used to designate the court to which the appeal is to go, with no reference whatever to time. Since, then, the words "be returnable" do not necessarily have to be used in connection with time, why is it not reasonable to believe that, when the legislators, in enacting Act No.
We cannot avoid directing our attention to the punctuation marks employed in that part of the statute which is under review.
Although "the niceties of grammar afford no safe guide in interpreting either laws or agreements (Dawson v. Ohio Oil Co.,
In Joy v. St. Louis, 138 U. S. on page 32,
In 36 Cyc., pages 1117, 1118, we find the following: "While punctuation, including quotation marks, brackets, etc., is subordinate to the text and can never control the plain meaning of a statute, it is nevertheless proper, in case of doubt, that punctuation, etc., should operate as an aid in the construction and interpretation of the statute."
We have already shown that the words, "appeals shall be allowed, and be returnable to the Court of Appeals, within ten days, * * *" are susceptible of more than one interpretation. If so, they are ambiguous, for we find in Cyc., vol. 36, page 118, that: "An ambiguity exists in a statute where it is susceptible of two or more different meanings or applications without doing violence to its terms."
Since the words quoted are ambiguous, a study of the punctuation may throw light on the meaning.
In Patterson's "Advanced Grammar and Elements of Rhetoric," on page 373, we find that "it is a good rule to construct sentences so clearly that there would be no ambiguity if all pauses were omitted." In other words, the rule is to use no more commas or other marks of punctuation than are essential.
We note that the clause, "and be returnable to the Court of Appeals," is separated from the other parts of the sentence by commas. If it had been the intention of the framers of the statute that both the clause, "shall be allowed," and the clause, "shall be returnable to the Court of Appeals," were to be modified or governed by the phrase, "within ten days, etc.," there would not have been the slightest need for the use of the commas, because, had that part of the statute been punctuated as follows: "Appeals shall be allowed and be returnable to the Court of Appeals within ten days," etc., there could then have been no doubt that both clauses, "shall be allowed" and "be returnable," etc., were intended to be governed by the phrase, "within ten days," etc., and useless and unnecessary punctuation would have been avoided. The use of the commas, then, since the statute, as punctuated, is ambiguous, indicates plainly that the lawmakers had some *361 intention, other than that both clauses should be modified by the phrase "within ten days," etc.
What could that meaning have been? Only one thing: That the clause blocked off by commas was not to be modified by the phrase quoted, but was parenthetically inserted to designate the court to which the appeals should go.
That such use is commonly made of commas is shown by reference to rule 10 on page 371 of Patterson's Grammar, supra, which rule reads as follows: "A parenthetical word, phrase, or clause, is separated from the rest of the sentence by commas."
In Webster's New International Dictionary we find that rule No. 1 for the use of a comma in punctuation is: "To set off words, phrases and clauses that are independent, parenthetical or appositional."
If we substitute the parentheses for the commas in the grammatical function and sense in which they are here employed, the pertinent section of the statute would read as follows: "Appeals shall be allowed (and be returnable to the Court of Appeals) within ten days," etc. Could there then be any doubt as to the meaning of the statute? We think not.
There is another use to which the comma may be put, and that is to separate each clause in a series of clauses alike in grammatical construction, but such use may not be made of the comma where the clauses are connected by the conjunction "and." For instance, it is proper to use commas in separating the various clauses composing the following: "When I was a child, I spake as a child, I understood as a child, I thought as a child," but it would not be proper to use the commas, if each clause was preceded by the conjunction "and." For instance: "I spake as a child and I understood as a child and I thought as a child."
In the statute in question the word "and" is used. Hence it cannot be said that the comma was inserted to separate two clauses alike in grammatical construction and both modified or qualified by the same phrase.
We find no other applicable rule for the use of commas, and we, therefore, believe that by using them the framers of the act intended to parenthetically set apart the clause from the other parts of the sentence, and that it was not intended to be qualified or modified by the following phrase.
As we have already said, we well know that the principles of statutory construction do not permit us to resort to the rules of grammar in an effort to override the plain meaning of an unambiguous law, and that, even if it is necessary to overlook or change punctuation, or even a word, to give to a statute the meaning manifestly intended, this may be done. State v. Desforges, 47 La. Ann. 1203, 17 So. 811; State et al. v. Dudley,
We therefore feel that, following the punctuation as inserted by the Legislature, we arrive at a reasonable meaning of the pertinent part of the statute in question without distorting the words.
Returning now to the three possible interpretations, and taking them up in the order in which we have stated them, we find that the language of the act cannot be interpreted as meaning that the appellant shall be allowed ten days within which to take the appeal, and that the trial judge shall have the right to fix the return day within ten days, because it is our opinion that the language, "within ten days, exclusive of Sundays, from the rendition of the judgment," refers back only to the clause, "appeals shall be allowed," and, therefore, does not relate to the time within which the judge has the right to fix the return day.
For the same reason we conclude that the original opinion of this court is erroneous, the ten-day period relating solely to the right to apply for the appeal and not to the return day.
In keeping with the spirit and stated purpose of the Legislature and the constitutional convention on this subject, as well as the former decisions of this court that, where the statute was not clear and definite, the court would construe the language of it with reference to the articles of the Code of Practice, or other statutes on the subject-matter governing the practice in the civil district court, we, therefore, hold that the sentence in question means that appeals shall be allowed within ten days, exclusive of Sundays, from the rendition of the judgment, and be returnable to the Court of Appeal, the trial judge having the right to fix the return day in the order granting the appeal, as provided in Act No.
Our attention has been called to the cases of Louque v. Hercules Oil Co., Inc.,
It is said that the above language, providing that appeals from orders appointing or refusing to appoint a receiver, or granting or refusing to grant an injunction, "shall be returnable in ten days from the date of such order," is identical with the language which we are now considering, and that, since, in Louque v. Hercules Oil Co., Inc., and Naef v. Miller-Goll Mfg. Co., supra, our Supreme Court has interpreted such language, we must here follow that interpretation.
We do not believe that the language of the one statute is identical with that of the other. In the act of 1898 there is only one main thought expressed, and the qualifying phrase, "in ten days," which, we note in passing, is not blocked off by commas, can modify one and only one part of the sentence, and that part is "shall be returnable." If in the act of 1898 it had been provided that "such appeals shall be allowed, and be returnable to the Supreme Court, in ten days," etc., then the same language as we are here considering would be involved.
It so happens that in the act of 1898 in the sentence which we have quoted appears the following: "Such appeal must be taken and perfected within ten days," etc. We call attention to the fact that there are no commas separating the second clause, "and perfected," from the other parts of the sentence. We cite this merely to show that, where there are two clauses connected by the conjunction "and" and qualified by the same phrase "within ten days," no necessity exists for the insertion of commas before and after the second clause, unless it is intended to employ the said commas as parentheses to block off the second clause.
Therefore, both of those cases are easily distinguishable on the ground that the language used by the Legislature is too clear to admit of any argument.
Since the time allowed by the trial judge for the filing of the transcript did not exceed the time permitted by law, and since the record was actually filed within the time fixed, the second contention of appellee is untenable.
For the reasons assigned our original decree is recalled and annulled, and it is now ordered, adjudged, and decreed that the motion to dismiss the appeal be, and the same hereby is, denied.
Original decree recalled; motion to dismiss denied.
Dissenting Opinion
My associates believe that the mandatory provision of the act of 1921 to the effect that appeals shall be allowed and be returnable to the Court of Appeal within ten days means that only one of the two requirements must be met within that period, to wit, the appeal allowed, and that the other requirement with reference to the perfection of the appeal was inserted merely for the purpose of indicating to what court the appeal should be returnable. I cannot agree with this construction of the act. In the first place, as was said in the original opinion, the language itself is too clear to admit of interpretation, and, in the second place, to attribute a purpose of this character to the Legislature, when there is in the Constitution at least two references to the fact that appeals from the city court are returnable to the Court of Appeal, is to convict the Legislature of unnecessary and ineffective repetition. Nor do I find anything harsh in the requirement that appeals be perfected in ten days, certainly not as exacting as in the case of receivership proceedings where a similar period of time is allowed. Moreover, in all cases where an extension of time is necessary, it is freely granted by this court or other appellate courts.
Moreover, the admitted purpose of the act of 1921 was to accelerate the trial and disposition of cases in the First city court.
I cannot distinguish in principle the present case from the cases of Louque v. Hercules Oil Co., Inc.,
For these reasons and those expressed in the original opinion I respectfully dissent. *363