No. 31398. | La. | Nov 3, 1931
Lead Opinion
This is an appeal from a judgment denying the application of the plaintiff for the appointment of a receiver of the defendant corporation, but reserving to plaintiff the assertion of such rights as she may have by way of injunction or mandamus. The judgment was read and signed in open court on May 18, 1931. *234 The order of appeal was granted and perfected May 25, 1931. The order makes the appeal returnable to this court on July 14, 1931.
The motion to dismiss is based upon section 4 of Act No. 159 of 1898, and the case of Louque v. Hercules Oil Co., Inc., et al.,
In answer to the motion to dismiss the appeal the plaintiff directs the court's attention to the fact that, in the cited case, the appeal was from an order appointing a receiver, while in this case the situation is reversed, and, therefore, the functions of the corporation are not suspended by the judgment appealed from. It is contended that it was the legislative intent to authorize the summary process only in cases where the judgment suspends the functions of the corporation. It is also contended that the error in fixing the return day is an error of the court, and that litigants will not suffer for errors of the court or its officers, it being beyond their control.
The pertinent part of section 4 of Act No. 159 of 1898 is quoted in the opinion in the Louque Case. We excerpt from that opinion the following:
"The receiver moves to dismiss the appeal upon the ground that section 4 of Act 159 of 1898, fixes the return day for an appeal from a judgment such as was rendered in this case, and that the order of appeal entered by the judge of the civil district court violates the provisions of section 4 of that act.
"We think the motion to dismiss the appeal is founded upon a mandatory provision of law, and it should be sustained.
"The pertinent part of section 4 of Act 159 of 1898, follows: `Any person or persons who *235 by affidavit appear to be interested, on giving bond in a sum to be fixed by the court, may appeal on the face of the record from any order appointing, or refusing to appoint, a receiver, granting, or refusing to grant an injunction as aforesaid; such an appeal when perfected shall have the effect of suspending the functions of such receiver, except to perform such administrative acts as may be necessary for the preservation of the property; provided that such appeal must be taken and perfected within ten days from the entry of the order appointing or refusing to appoint a receiver, or granting or refusing to grant an injunction. Such appeal shall be returnable in ten days from thedate of such order, and shall be tried by preference in the appellate court.' (Italics by the court.)
"Section 4 of Act 159 of 1898, has not been amended or affected by subsequent legislation, and the provision of the section relied upon by mover is clearly mandatory."
Whether the court appoints or refuses to appoint a receiver, the appeal must be made returnable to this court within ten days thereafter.
With respect to the return day, the section is mandatory, and it must be enforced as written regardless of our disagreement with the wisdom of the Legislature in applying the rule alike in cases where the judgment appoints or refuses to appoint a receiver.
The error in fixing the return day is chargeable to both the appellant and the court. Its correction was not beyond the control of the appellant, who might have had the order conform to the requirement of the statute, but who inadvertently omitted to do *236 so. For this reason, the fixed jurisprudence of this state with respect to errors of the court or its officers which are beyond the control of a litigant cannot be successfully invoked by this appellant.
For the reasons stated the motion to dismiss this appeal is sustained, and the appeal is therefore dismissed.
Addendum
The purpose in granting a rehearing in this case was to reconcile the decision which we had rendered in the case, and in Louque v. Hercules Oil Co.,
In this case it appears that the attorneys for the appellant presented to the judge a written motion for an appeal, together with a written order of appeal to be signed by the judge, in which order it was said: "returnable to the Supreme Court of Louisiana on ____, 1931," etc.; which was an implied request for the judge to fix a return day for the appeal. The judge did not insert a date for the return day, but merely filled in the amount of the bond to be furnished, and dated and signed the order of appeal. The minute clerk afterwards inserted a date, in the blank space which the attorneys for the appellant had left, to represent the return day of the appeal. The minute clerk, who, according to the judge's certificate, is not a lawyer, evidently did not observe that this was not an ordinary case, or one in which the judge should fix the return day of the appeal, but was a case where the law itself had fixed the return day. But the error of the minute clerk consisted merely in doing something that was unnecessary *238 and without effect. The attorneys for the appellant are presumed to have known that their appeal was "returnable in ten days," no matter what the minute clerk, or the judge himself, might have said of the return day. The judge in this instance made no mistake, and the mistake of the minute clerk was a matter of no importance or consequence whatever.
We do not find any precedent in our jurisprudence for applying the general rule, stated in article 898 of the Code of Practice, and in the numerous decisions on the subject, to an appeal from an order appointing or refusing to appoint a receiver. In Posner v. Southern Exhaust Blow Pipe Co.,
"Had the error not occurred, the return day of the appeal would have found this court in vacation, and this particular case not triable on appeal at chambers, but by preference in open court. Under such circumstances the appellant would have been *239 authorized by the fourth section of Act No. 45 of the Extra Session of 1870 to have withheld filing the transcript in the case, until after the opening of this court in November, by force of the law itself. The appellees therefore suffered no injury by the error. They would be precisely where they would have been had the return day been correct."
The decision in New Orleans, Ft. Jackson Grand Isle Railroad Co. v. New Orleans Southern Railway Co.,
The decisions which do support our ruling in the present case are Kerlin v. Bryceland Lumber Co.,
Our former decree dismissing this appeal is reinstated and made the final judgment of the court.