106 La. 643 | La. | 1901
On Motion to Dismiss.
The opinion of the court was delivered by
Defendants and appellees move to dismiss this appeal on grounds which are stated as follows, to-wit:
“That on March 21st, A. D. 1901, the said cause was docketed and judgment rendered and signed by the Judge of the Nineteenth Judicial E¡strict Court of Louisiana, St. Martin Parish.
“That on March 30th, A. D. 1901, said court, in and for St. Martin Parish, Louisiana, was adjourned sine die. That subsequently thereto, to-wit: on the 16th day of April, A. D. 1901, on the written petition and application of plaintiffs in said case, and not in open court, an order was granted and signed by the Hon. District Judge, granting an appeal and fixing a return day therefor to this Honorable*644 court. That no service of said petition and order and no citation of appeal were, at any time” (served) “on the defendants and appellees.”
The record shows that the judgment was rendered and signed in open court March 20th, 1901, and that upon April 16th, following, the plaintiffs presented a petition to the judge a quo in which they alleged “That they were allowed a suspensive appeal, and in the alternative, a devolutive appeal from said judgment on their furnishing bond, for either appeal, in .the sum of $175, returnable according to law, and thus on the 27th of March, 1901. That, by an oversight, no return” (day) “was fixed * * * pursuant to Act 92 of * * * 1900, which provides: ‘That judges of the District Courts throughout the State * * * shall fix the return days in all civil cases appealable to the Supreme Court; provided, the judge shall fix the return day in the order granting the appeal, which shall not be less than fifteen days nor more than sixty days from the date of the order, except by the consent of parties.’ That said order of appeal, less the return day, is carried on the minutes of the Court and is correctible and subject to correction by your Honor to remedy the omission by directing the clerk of the court to correct and amend the said minutes in said case by adding to said appeal entry a return day pursuant to said law, to be fixed by your Honor.
“Wherefore petitioners pray that the clerk of your Honorable court be ordered to correct and amend said minutes in said suit by adding thereto the return day which your Honor may fix, pursuant to said Act No. 92. or such other order as your Honor may think proper, and for general relief.” etc.
Upon this petition the judge made the following order, to-wit: “Considering the agreement, made in open court, that none of the appellants’ rights were to be waived by the signing of the judgment, and considering the fact that the court, failed to fix the return day of. the appeal moved for by appellants, and that the minutes fail to show any return day fixed, it is now ordered that the clerk of the court of St. Martin Parish be and he is hereby ordered to correct the said minutes in said case of J. W. Salles et als. vs. Belizaire Jacquet et als., No. 9460, so as to make the return day of said appeal returnable sixty days from the entry of said appeal to the Supreme Court as the return day fixed by the court.”
The order for the appeal, as originally entered, upon March 27th, does not appear in the transcript, but, from the order, as corrected by
For the reasons assigned, it is ordered and adjudged that the'appeal heiein is dismissed at the cost of the appellants.
Rehearing refused.