No. 17,403 | La. | Apr 26, 1909
Lead Opinion
On Motion to Dismiss.
On November 7, 1908, judgment was read and signed in open court, recognizing the plaintiffs as owners of the fractional E. y2 of section 1, in township 20 N., of range 16 W., and entitled to the possession thereof free from the claims of the defendants, and that the notice of location filed by defendants on April 10, 1908, recorded in Conveyance Book 47, at page 587, be canceled and erased. It was further ordered that the claim of plaintiffs for damages be dismissed as in ease of nonsuit and that defendants pay all costs of suit, including $10 as fee of curator ad hoc.
On November 14, 1908, the defendants E. D. Lingold and Mrs. Minnie J. Armstrong-filed in open court a motion for a devolutive appeal, and the motion was granted, and the amount of bond fixed at $100. The bond was given, and the record was seasonably filed in the clerk’s office of the Supreme Court.
Plaintiffs have moved to dismiss the appeal on the ground that L. M. McDuffie, one of the defendants, has not been made a party to the appeal, either as an appellant oían appellee.
This is a mistake. L. M. McDuffie is before us as an appellee, because, in an appeal taken by motion in open court at the same term, all parties to the suit who are not appellants are appellees, and all are concluded by the judgment rendered on appeal. Conery, Jr., v. Waterworks, 42 La. Ann. 441, 7 South. 590.
Where an appeal is taken by motion at the same term, no citation of appeal or other notice to the appellee is necessary. Code Prac. arts. 573, 574. It follows that the legal effect of such a motion is equivalent to the citation of all parties not appellants Sauer v. Union Oil Co., 43 La. Ann. 699" court="La." date_filed="1891-05-15" href="https://app.midpage.ai/document/sauer-v-union-oil-co-7195242?utm_source=webapp" opinion_id="7195242">43 La. Ann. 699, 9 South. 566. See, also, Vallee v. Hunsberry, 108 La. 136" court="La." date_filed="1902-07-01" href="https://app.midpage.ai/document/vallee-v-hunsberry-7163857?utm_source=webapp" opinion_id="7163857">108 La. 136, 32 South. 359.
In Richardson v. Zuntz, 26 La. Ann. 313" court="La." date_filed="1874-04-15" href="https://app.midpage.ai/document/richardson-v-zuntz-7190040?utm_source=webapp" opinion_id="7190040">26 La. Ann. 313, a motion was made to dismiss the appeal on the ground that all the parties interested in the judgment had not been made parties to the appeal. The court, speaking through Ludeling, C. J., said:
“The- last objection is untenable. We find in the record an order for an appeal granted on motion in open court, a.nd the bond is executed in favor of the clerk. We think that all the parties who have not appealed are appellees.”
The motion to dismiss is therefore overruled.
Opinion on the Merits
On the Merits.
Appellants have made no appearance in this court. Appeal is a mode of revising final judgments, and it is the duty of the appellant to point out the errors to his prejudice in the proceedings below. In the absence of assignment or suggestion of error, the appellate court is justified in presuming that the judgment appealed from is correct.
The plaintiffs have joined in the appeal, and have prayed for an amendment of the judgment in respect to damages.
The land in dispute is in the bed of Olear Lake, and within the proven oil field of Oaddo parish. Plaintiffs derive their title through mesne conveyance from the state of Louisiana. Defendants filed and recorded affidavits of the location of mineral claims on the same land. Plaintiffs allege damages by reason thereof in a sum exceeding $2,000. The most that can be said, on the evidence, is that the filing of the mineral claims prevented plaintiffs from selling the land at a profit. But the same evidence shows that the land is steadily increasing in value, and it therefore cannot be said that the plaintiffs have as yet suffered any real damage.
Judgment affirmed.