64 So. 116 | La. | 1914
Motion to Dismiss the Appeal.
The record was filed on March 3d, and the following November the motion to dismiss was filed.
The appeal was devolutive, and the ground of the motion is that the final judgment in the district court was rendered on January 9, 1912, and signed on January 22, 1912, in open court, and the appeal bond was filed only on the 10th day of February, 1913, 18 days after the lapse of 12 months from the date of the signing of the judgment to the date that the record was filed on appeal.
Twelve months being the limit within which to perfect a devolutive appeal, no question but that an appeal should be dismissed, taken after the lapse of the 12 months. Code of Practice, 593, p. 462.
This proposition is not disputed by the appellant. His defense in opposition to the dismissal is that a motion to dismiss an appeal is too late if filed three days after the transcript of appeal has been filed.
The motion to dismiss was filed three days after the transcript had been filed on appeal, but, none the less, in view of the fact that a bond is essential to complete the appeal, the motion to dismiss presents a question which we must consider and decide.
After the 12 months, the right of appeal was lost, and could not be reinstated after that time. Where no bond at all was filed, the court may notice the fact called to its attention by motion.
In Coudroy v. Pecot, 51 La. Ann. 496, 25 South. 271, this court held, in passing upon a similar question:
“There was no fixed period to which the three days’ rule could be made to apply.”
The effect was self-acting, and the right of appeal nonexisting.
Going back to earlier jurisprudence, in Dwight v. McMillan, 4 La. Ann. 350, the appeal under a similar state of facts was considered as having been abandoned.
There are also recent decisions upon the subject. State v. Todd, 104 La. 241, 28 South. 886, approvingly refers to the case Coudroy v. Pecot, 51 La. Ann. 495, 25 South. 270, and in Tell v. Senac, 121 La. 534, 46 South. 618, it was held that the appeal could not be revived.
For reasons stated, the appeal is dismissed.
