32 La. Ann. 801 | La. | 1880
On Motion to Dismiss.
The opinion of the Court was delivered by
The.plain tiffs and appellees have filed two distinct, appearances, tending to a dismissal of the appeal.
In the first, they complain that they have not been cited according: to law.
In the second, cautiously reserving all rights under the motion? they say that the petition of appeal and transcript were not filed on the return-day appointed by law ; that the petition of appeal is not-annexed to the transcript, and was not filed in this Court as required by law ; that the appellant has filed no assignment of error in this Court.
We propose to examine the first ground of complaint, for it is only on the theory that appellees are in court, by a proper citation, that they can be heard to urge the grounds embodied in their additional appearance.
The question is, therefore: Have the appellees been cited to answer the appeal ?
The appeal was asked by petition, filed on the 13th of Decembers 1879, containing a distinct prayer that the plaintiffs be cited. This was-unnecessary, 4 A. 434; 12 A. 332. See, also, Seghers vs. Soulé, N. R.. O. B. New Orleans, 45 fol. 15; also, Vredenburg vs. Behan, lately decided ; also Murphy vs. Factors’ Co. N. R. (1876.)
“ Service accepted and citation of appeal waived this 15th day of December, 1879.
“FRANKLIN GARRETT,
“Attorney for Wood & Roane.”
The validity of this indorsement was not admitted in the argument of the cause by the counsel whose act it purports to be.
The indorsement is found on the petition of appeal, filed on the 13th of December, 1879, and which is covered by the clerk’s certificate, which appears to be in due form, at the end of the transcript.
We cannot assume that the indorsement was not genuine; the clerk, who is presumed to know the signature of attorneys practicing before the court, would not have accepted the document with a forged signature; the counsel, whose signature the indorsement purports to exhibit, would have loudly denounced it, and properly too. There was no want of authority on the part of the counsel to make that indorsement. Acceptance of service by an attorney of record will be presumed to have been authorized by his client, unless the latter, by his own affidavit or otherwise, shows that the attorney transcended his authority. 3 A. 258 ; 9 M. 88 ; 10 M. 639 ; 12 R. 95 ; 3 A. 558; 5 A. 118 ; 10 A. 66 ; 5 N. S. 343 ; 8 N. S. 2 ; 1 A. 397.
In the present instance the petition was signed by the counsel who represents the appellees in this Court. We are satisfied that there was an authorized waiver of service of both petition and citation, on behalf of the appellees, by their attorney of record, and that the motion to dismiss on the ground of want of citation is untenable.
Passing now to the other reasons asserted for the dismissal of the appeal, we hold :
First. That the appeal being made returnable on the second Monday of June, 1880* to this Court, at Monroe, which was the 14th of June, the transcript filed on the following day was in time. The right to file a transcript within the three judicial days following the fixed return-day seepis to be impliedly accorded by law, and has almost invariably been so recognized. The jurisprudence on that point is so ancient, that it has become a rule of practice throughout the State, which, far from disturbing, we formally indorse. We deem it useless to refer to authorities, which are very numerous and admitted by counsel to exist.
Second. It was not necessary to annex the original of the petition to the transcript, or to file it in this Court. Copies have been held to be sufficient. 4 N. S.; 12 L. 465.
Third. It is not required in a case like that before the Court, in which exeouim'y process was asked and granted for the seizure and sale
The only question presented in such a ease is : whether there was legal and sufficient evidence before the judge to justify his flat. Where the evidence in a case is of record, no assignment of error is necessary on appeal. 6 B. B8 ; 26 A. 709.
The motions to dismiss are overruled.
On the MeRits.
We find that the evidence before the judge is an act under private •signature, recorded in the office of the parish recorder ; that the notes filed with the petition are countersigned by the deputy recorder, on the -day of registry of the act, at the solitary instance of one of the subscribing witnesses.
An order for executory process cannot issue, unless on authentic ■evidence of the debt and mortgage.
C. P. 732 et seq.; H. D. p. 646, vo. Ex. Process, 1 (a) (b) p. 651, III. (a) L. D. p. 288, vo. Ex. Process, 1II. III.
It is therefore ordered that judgment of the lower court be reversed, and that these proceedings be dismissed with costs.
On Application for Rehearing.
The brie! filed on behalf of plaintiffs, on this application, condenses the able argument of their counsel on the trial of the case. The spirit and the letter of the laws, the rulings bearing upon the questions presented, have been subjected to a severe criticism on his part.
Were the argument offered on questions never before agitated, the views urged might have received indorsement, but the subjects reviewed have so long ago, and so frequently since the beginning, been presented, thoroughly discussed, and so pointedly determined, that the rules which the previous Courts have recognized have settled the practice with such solidity that it would be dangerous, probably hurtful, to endeavor to shake them. It would even be useless to do so, as they are generally received, and have perhaps supplied deficiencies, which, otherwise, might ■be claimed to exist, to the mystification of both Bar and Bench.
Our attention was specially invited to 32 A. 29. That case has reference to an extended and not to an 07-iginal return-day for the filing of the transcript. The authorities in the “report of the case,” quoted by the appellee, and by the Court, are to the effect, that the appellant is not entitled in such extension case to the three days of grace allowed when the appeal is first made returnable.
The application for a rehearing is disallowed.
