193 So. 377 | La. Ct. App. | 1940
Plaintiffs seek the sum of $10,500 of the defendant railroad company as damages for the killing of their brother by a passenger train of defendant at a crossing in the City of Rayne in the early morning of February 2, 1938. The case was filed and tried in the Parish of Acadia, the situs of the accident. Under Code of Practice, Article 543, as amended by Act No.
The record does not show whether or not the notice of judgment was served or waived. However, the record does show that a certified copy of the minutes of Vermilion Parish of June 27, 1939, showing the rendering of the judgment, was filed by the Clerk of Court of Acadia Parish on June 29, 1939, and shows that a certified copy of the minutes of Vermilion Parish of June 30, 1939, showing the reading and signing of the judgment, was filed by the Clerk of Court of Acadia Parish on June 30, 1939. The minutes of the court of Acadia Parish show that, on September 5, 1939, counsel for plaintiffs moved in open court for a devolutive appeal in this case, and the order of appeal was entered making the appeal returnable to this court within sixty days, upon giving bond in the sum of $250. The bond was filed on September 11, 1939.
A motion has been filed in this court to dismiss the appeal on the ground that no written motion was filed for obtaining the appeal, nor was there any prayer for the citation of the appellee; that the ten months term or session of court in the Parishes of Acadia and Vermilion begins on September 1st and ends on June 30th of each year; that the verbal motion for the appeal and the order entered thereon was made at a subsequent term from that on which the judgment was rendered and signed. A copy of the order fixing the terms of the court is annexed to the motion to dismiss.
According to the ruling in the case of Officer et al. v. American Ins. Co.,
While counsel for appellants recognizes the rule of law as announced in the above case, he attempts to save the appeal on two principal grounds, as follows:
In the first place, appellants contend that, since the motion to dismiss does not allege that a citation of appeal was not issued and served, the said motion does not therefore set forth grounds for the dismissal of the appeal. It appears, however, that the motion to dismiss does aver that the motion for appeal was made orally and that no citation of appeal was prayed for. The record itself shows that no citation of appeal was prayed for, and under the well established rule of law announced in the Officer case, supra, the court officers were under no duty to issue and serve a citation of appeal on the appellee. The record does not show the issuance and service of a citation of appeal, and the Clerk has certified that the transcript contains all the documents filed and the proceedings had in the case.
In the second place, appellants contend that, as the judgment was signed on the last day of the 1938-1939 term of court in the Parish of Vermilion, the judgment did not become final, under Article 543 of the Code of Practice, as amended by Act No.
Reference is made to the case of the Item Company, Ltd., v. St. Tammany Hotel et al., La.App.,
While the tendency is to protect, as far as possible, the right of appeal, we cannot disregard the plain ruling of the Supreme Court and save this appeal from dismissal.
For these reasons, the appeal is hereby dismissed.