Marigny v. Stanley

2 La. 322 | La. | 1831

Martin, J.

The defendants and appellees demand, the dismissal of the appeal, on the ground that it was not regularly taken, and prosecuted within the year, after the judgment was rendered, and the plaintiff and appellant residing within the state.

The judgment was rendered on the 4th of November, 1829, and on the 28th of October, 1830, an order was made for allowing the appeal on bond and security being given. On the 24th of December following, about fifty days after the expiration of one year since the judgment was rendered, the judge of the eighth district, on a suggestion, unsupported by any evidence, that “ owing to the great number of defendants and other causes, there had not been notice for the service of the citations, made in order for a prolongation of the return day, on bond andsecuritybeinggiven, according to the original order. And which security was accordingly given, and on or before the 17th January following, the citations were all served,

Gn these facts, the counsel of the appellees has contended, that the prescription, m case of appeal, is interrupted, , „ . . . , r , . like m the case of any other suit, by the service of the rata-tions; but that admitting that the allowance of the appeal interrupts the prescription when the condition on which it is granted; i. e. giving bond with security, is complied with— it does not when the appellant fails in giving bond within the year. On such a failure, the judgment becomes resjudi-dicata, at the expiration of the year. So it did in the present case. Further than the prolongation of the return day can be granted in no case, but by the supreme court, on suggestion of the record having been prevented from being timely returned, by an event beyond the appellant’s control, and on due proof being made of this event. — Code of Practice 883.

Eastern District, April 1831

In the present case, no evidence was offered of such an event, and the original order made the appeal returnable to the first Monday in January; allowing sixty odd days. The „ appellant suffered fifty odd days to elapse before he dreamed to give bond. Till this was done, nothing authorized the clerk to prepare citations or a transcript. To this circumstance it was owing that there was no time left to serve the citations, and no other.

The appellant’s counsel has urged, that the judgment was signed too soon; i. e. on the day it was rendered, and it has not yet become final: — that it was never notified to the party ; and the district judge had the right of prolonging the return day.

Judgments in the district courts bear date of the day on which they are rendered. In signing them three days after, the judge seldom adds a date to his signature. Sometimes he signs before the expiration of the three days. His signature does not prevent a mot on for a new trial within that period, though it does afterwards, although affixed prematurely ; and the judgment becomes final, in the lower court, by the lapse of the three days.

If the appellant does not comply with the condition upon which the grimted, by giving theappeai andsu? fers a year to elapse the judgment becomes res ‘cannofbe relieved •ither by the Du-trict or Supreme Court.

If the judgment be not final, this is rather a reason to demand than to reject a dismissal.

The service or notification of a, judgment is necessary to prevent a prayer for a suspensive appeal being made too late, but for n0 other Papóse,

We think the compliance with the condition on which the , appeal is allowed, i. e. giving bond, is necessary to render the allowance absolute, so as to interrupt the prescription. Through the neglect of the appellant in this case, the judgment became res judicata, on the expiration of the year: , . , , _ , ' neither the district judge nor this court, could afterwards re-heve the appellant.

Le¿ the appeal be dismissed with costs. rr