65 So. 487 | La. | 1914
The judgment in this case was pronounced orally in the district court on the 2Sth of March, 1913, “in favor of the defendant, dismissing plaintiff’s action at his cost.” On the same day, an appeal was granted the plaintiff, returnable to this court on the 5th of May, 1913. The transcript was filed here on the 8th of May, 1913.
On the 30th of March, 1914, appellant’s counsel filed in this court a petition for certiorari, alleging:
“The transcript filed herein is incomplete for the reason that same does not contain a copy of the judgment which was rendered, read, and signed in open court and filed in this case, * * * and that the presence of a copy of said judgment in the record or transcript of this case is necessary for a decision of the case by this court.”
This motion did not inform us when the judgment was read and signed. The writ of certiorari was issued upon the suggestion and upon the ground “that the transcript of appeal was incomplete and defective,” the then Chief Justice, evidently believing that the judgment had been written, read, and signed before the appeal was perfected, and that the only omission was the failure to copy the judgment into the transcript. The return on the writ of certiorari discloses, however, that the transcript was not incomplete or defective when it was sent to this court, because no judgment had been signed or written. The copy of the judgment and minutes of that date recite that the judgment was “rendered, read, and signed on the 23d day of March, 1914”; that is, 10 days after the appellee had filed the motion to dismiss the appeal.
The appellee was not- notified of the application for certiorari, or of the issuance of the writ, and it seems that its attorney did not know that a judgment had been signed in the court below and transmitted to this court until the case was called for argument. He then filed a motion to rescind the order and writ of certiorari, which, motion was unnecessary, and may be disposed of with the statement that, if the writ of certiorari was issued improvidently, it can have no effect upon the appeal.
The motion to dismiss the appeal is to be considered and disposed of according to the situation and condition of the case at the time the motion was filed. At that time, no judgment had been signed. This court is without appellate jurisdiction of a ease until a final judgment is signed in the court below; otherwise the district court would not have had jurisdiction to sign the judgment.
The appellant’s argument that the motion to dismiss the appeal came too late has no merit, because it has been decided repeatedly that, if there has been no judgment signed in the court below, this court will, of its own accord, take notice of the fact that it is without appellate jurisdiction and must dismiss the appeal. See Executors of Bird v. Bird, 23 La. Ann. 262, and Labatte v. Durruty, 20 La. Ann. 583, citing Whittemore v. Watts, 4 Rob. 47; Mechanics’ & Traders’ Bank v. Walton, 7 Rob. 451; Chartier v. Police Jury, 9 La. Ann. 42.
Eor the reasons assigned, the appeal is dismissed at appellant’s cost.