83 So. 222 | La. | 1919
Lead Opinion
On Motion to Dismiss Appeal.
The judgment appealed from was rendered on January 14, and signed on December 18, 1918, and, on the day last mentioned, plaintiff moved for and obtained an order for a devolutive appeal returnable to this court on January 6, 1919, which was perfected by the filing of a bond, on December 31, 1918, and the transcript was lodged in this court on the return day.
Defendant moves to dismiss the appeal on the ground that the judgment “was rendered on the 14th of January, 1918, and signed on the 18th of January, 1918,” and that the appeal, taken at a subsequent term of the court, should have been, but was not, taken by petition, with citation to the appellee.
The error in the motion to dismiss, as to the date upon which the judgment was signed, was, no doubt, attributable, in part at least, to the fact that, on January 10, 1919, plaintiff filed in the trial court a petition (a copy of which is annexed to the motion), in which it is alleged:
“That on December 18, 1918, your petitioner prayed for a devolutive appeal from the judgment, * * * dated January 14, 1918, and signed December 18, 1918; that said appeal was made by motion in open court, at a term of court subsequent to that in which the judgment appealed from was rendered; that petitioner failed to pray for citation of appeal and service upon defendant,” etc. — which allegation, with others, is followed by a prayer for citation, etc.
“Whoever intends to appeal, may do so either by petition, or by motion in open court at the same term at which the judgment was rendered,” etc.
But it also declares (article 546) that “the judge must sign all definitive or final judgments rendered by him,” and that (article 565) “one may appeal from all final judgments
The motion to dismiss the appeal is therefore overruled.
Opinion on the Merits
On the Merits.
Plaintiff appeals from a judgment dismissing his suit on an exception of no cause of action.
He sued, as tutor of his minor children, for damages for personal injuries suffered by their mother, which ar^ alleged to have caused her death.
It is not alleged that the defendant, St. Charles Hotel Company, was the owner or lessee of the St. Charles Hotel, or that defendant was in any way interested in tne establishment near the side door of which the accident is said to have occurred. The petition would not disclose a cause of action, however, if we should assume, from the name, that defendant was the owner or lessee or otherwise interested in the St. Charles Hotel ; for it would not even then appear that defendant was in any way responsible for the condition of the manhole or the cover over it. On the contrary, it may well be inferred from the allegations of the petition that the manhole was maintained for the convenience of either the municipal authorities or of some public service corporation or corporations, to reach the wires and cables under the sidewalk.
■Without an allegation showing that defendant was responsible for the condition of the manhole, the petition does not disclose a cause of action.
The judgment appealed from is affirmed at appellant’s cost.