Jackson v. Weeden, 17 La. App. 306

17 La. App. 306 | La. Ct. App. | 1931

ON MOTION TO DISMISS

DREW, J.

The judgment in this case was rendered and signed on July 14, 1930. Defendants in open court asked for orders of devolutive appeal, which were granted and made returnable to this court on or before August 15, 1930; the appeal bond being fixed at $100. This appeal was not perfected.

On September 27, 1930, defendants in open court asked for orders of devolutive appeal, which were granted, and the return day fixed on or before October 15, 1930, the bond being fixed at $100. On October 10, 1930, the appeal bond was filed with the clerk of the district court, but the record was not returned into this court and filed until November 12, 1930, twenty-eight days after the return day, as fixed by the court.

Plaintiff, appellee, has filed in this court a motion to dismiss the appeal based upon the above facts. The motion will have to be sustained for the reason that the oral motion for appeal was made at a term subsequent to the term at which judgment was rendered. This is not allowed by the laws of this state, and the only way in which orders of appeal could have been legally taken was by petition and citation ,on the appellee. Code of Practice, art. 573; Walker v. Martolo, 16 La. 50; Bolling v. Anderson, 10 La. Ann. 650; De St. Romes v. Macarty, 21 La. Ann. 277; Potier v. Thibodeau, 21 La. Ann. 618; Hardy v. Stevenson, 27 La. Ann. 95; Pournet v. Van Wickle, 33 La. Ann. 1108; Wheeler v. Peterkin, 38 La. Ann. 663; Trounstipe v. Ware, 39 La. Ann. 939, 3 So. 122; Schmitt v. Drouet, 42 La. Ann. 716, 7 So. 746.

It is apparent from the record that the vacation period of the Fourth District Court is from July 15th to September 15th, and that the new term began on September 15th, and the appeal was asked for by oral motion in open ■ court on September 27th, a term subsequent to the one that expired on July 15th.

There is, however, another reason for dismissing the appeal. The record was not returned into this court until twenty-eight days after the return date and the appellant has in no way attempted to or filed in this court anything to show that it was not returned through no fault of his. He has not shown that he made the necessary deposit to cover the cost of appeal, either with the clerk of the district court or with the clerk of this court, on or before the return day, or the three days of grace allowed for said filing. Therefore the appeal was abandoned. Article 587, Code Prac., and citations thereunder.

It is therefore ordered, adjudged; and decreed that the appeal taken herein is dismissed, at appellants’ cost.