W. L. Pace Piano Co. v. Louisiana Seeburg Piano Co., No. 26195

No. 26195 | La. | Oct 22, 1923

Lead Opinion

BRUNOT, J.

In this case there is a motion to dismiss an appeal from a judgment appointing a receiver and from a judgment overruling a motion for a new trial.

The judgment appointing a receiver was signed in open court on May 15, 1923. There was no application to the court to vacate this order, but a motion for a new trial was filed on the 21st day of May, 1923. The judgment overruling the motion for a new trial was rendered on the 11th day of June, 1923, and the order of appeal was entered in the minutes of court on the 14th day of June, 1923. It is apparent that the motion for a new trial was filed six days after the rendition of the judgment complained of, and was therefore too late. The rule is that motions for new trial must be filed within 3 days after the rendition of the judgment, except in eases where the judgment is not signed. O. P. art. 558; Succession of Carraby, 23 La. Ann. 110" court="La." date_filed="1871-02-15" href="https://app.midpage.ai/document/succession-of-carraby-7188583?utm_source=webapp" opinion_id="7188583">23 La. Ann. 110.

Moreover, the motion for a new trial was submitted on the pleadings and argument, and the court’s attention has not been directed to any law conferring upon appellant the right to an appeal from a judgment overruling a motion for a new trial.

It is also apparent that the order of appeal was entered 24 days after the judgment appointing a receiver was signed. It was therefore applied for too late to entitle appellant to an appeal therefrom. Section 4 of Act 159 of 1898; In re Louisiana Driving & Racing Club, 120 La. 268, 45 South. 127.

As these conclusions dispose of the motion to dismiss the appeal, it is unnecessary to state the case with more particularity or to express an opinion upon the other grounds urged in the motion.

For these reasons the motion to dismiss is sustained, and the appeal herein is dismissed at appellant’s cost.

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Rehearing

On Application for Rehearing.

By the WHOLE COURT.

PER CURIAM.

It may be conceded that the relation of commercial partners does not, of itself, authorize one partner to confess judgment for another. That is not what occurred in this case. The suit for appointment of-a receiver or liquidator of the partnership was Brought against the partnership; and the attorney representing the partnership, and answering the petition for the partnership, admitted that the allegations setting forth a cause for the appointment of a receiver or liquidator were true. The evidence on which the judgment was based, therefore, appointing the receiver or liquidator, was all one way. Under such circumstances, a complaining partner’s remedy is not by appeal, because, as the record stands, there would be no alternative but to affirm the judgment appealed from. If any injustice has been done to the complaining partner, his remedy is an action to annul the judgment.

Resting our decree on that proposition, and pretermitting the question whether the appeal was governed by Act 159 of 1898, p. 312, which in terms applies only to corporations.

The rehearing is denied.

OVERTON, J., absent. DAWKINS and ST. PAUL, JJ., dissent.