79 So. 320 | La. | 1916
Each of the plaintiffs filed a separate suit against the defendant for damages for the killing of their father in a street car accident. On motion of the plaintiffs’ attorneys, to which the defendant’s attorneys consented, the five suits were ordered consolidated. When the cases were called for trial, the attorneys for the plaintiffs
The five plaintiffs filed a joint motion or petition for an appeal, but the order granted the appeal to Rose Muriel Sammons alone.
The five plaintiffs and their surety, Martin H. Manion, signed and filed one appeal bond, containing the condition:
“That the above-bound Meredith Kerker Sammons, Muriel R. Sammons, lone 0. Sammons, Angus D. Sammons, Angus Marion D. Sammons, tutor, shall prosecute their appeal, and shall satisfy whatever judgment may be rendered against them or that the same shall be satisfied by the proceeds of their estate, real or personal, if they be cast in the appeal; otherwise that the said Martin H. Manion shall be liable in their place.”
The transcript of appeal was filed in this court on the third day after the return day of the appeal; and, on the fifth day after the filing of the transcript, the defendant filed a motion to dismiss the appeal on the following grounds, viz.: (1) That a proper motion of appeal was not filed; (2) that a proper order of appeal was not entered or signed; (31 that a proper appeal bond was not given; and (4) that the transcript was filed too late.
In the case of Gagneaux v. Desonier, 104 La. 649, 29 South. 282, it was distinctly held that an appeal could not exist without a judicial order granting it; that the appellate court was without jurisdiction without an order from the trial court, granting an appeal; that the order of appeal could not be waived or dispensed with by consent of the appellee; and that the court should on its own motion take notice of the absence of an order of appeal and dismiss the appeal.
Counsel for appellants contend that the motion to dismiss the appeal for want of an order of appeal cannot prevail, because the motion to dismiss was not filed within the three days prescribed in the Code of Practice; and they cite the following cases in support of that contention, viz.: O’Riley v. McLeod, 2 La. Ann. 138; Hall et al., Syndics, v. Nevill, 3 La. Ann. 326; Mitchell v. Lay, 4 La. Ann. 514; Boykin v. O’Hara, 6 La. Ann. 115; Temple v. Marshall & James, 11 La. Ann. 613; Creevy et al. v. Breedlove, 12 La. Ann. 745; Dumonchel v. Lemerick, 21 La. Ann. 30; Murrison v. Seiler & Co., 22 La. Ann. 327; Walker v. Sauvinet, 27 La. Ann. 314; Webb v. Keller, 39 La. Ann. 60 ;
In only three of the eases cited, Temple v. Marshall & James, 11 La. Ann. 613, Walker v. Sauvinet, 27 La. Ann. 314, and Webb v.
It is ordered that the appeals of all of the plaintiffs be dismissed, except that of Rose Muriel Sammons, tho motion to dismiss whose appeal is overruled.
On the Merits..
The five plaintiffs whose appeal was dismissed have taken a devolutive appeal, which has been consolidated with that of their sister, as to whom the motion to dismiss the appeal was overruled.
There is no dispute about the facts forming the general outlines of the case. The plaintiffs’ father, walking across Baronne street, on the downtown side of Jackson, going to his home, in the direction of the river, at about 11 o’clock at night, was struck and killed by a street car going up Baronne street.. The car line was a single track, on .which, of course, the cars traveled in one direction only. The track was straight, and the view unobstructed, for a distance of two blocks, about 600 feet, from and below Jackson street. The neighborhood was a residence section of the city and very quiet at night. The car was well lighted, the front doors open, and the curtain removed. It was traveling at high speed, but probably not exceeding the limit fixed by municipal ordinance. It was making noise enough, as it approached Jackson street, to be heard more than a block from the scene of the accident. There was a “Go Slow” sign beside the track, below and near Jacxson street; which sign, the defendant contends, was to be heeded by motormen in the daytime only, when there was considerable traffic on Jackson street.
No explanation is given, nor theory advanced, as to why Mr. Sammons walked in front of the car, except that there is some evidence — and it is very doubtful — that he was intoxicated.
The plaintiffs contend that the defendant is liable for the neglect or failure of the motorman to have his car under such control as to be able to stop and avoid an accident when he saw the man so close to the track.
The motorman admits that it was too late to avoid the accident when he saw that the man would walk in front of the car. He testified that instantly he applied his brake and dropped his fender, and that nothing more could have been done then to avoid the accident. It is denied that the fender was lowered in time; but we think the circumstance that Mr. Sammons’ body was not run over, but was shoved or carried across and beyond Jackson street and deposited beside the track, corroborates the motorman’s statement that the fender was dropped into place before the car struck the man.
The judgments appealed from are affirmed.
1 South. 423.