Quinn v. Banker

DORE, Judge. Plaintiff, a colored woman, sues the defendant, a white man, for damages in the sum of $1,000, on account of an alleged assault and battery made by defendant on plaintiff on April 26, 1934, in the town of Ponchatoula, at the Illinois Central Railroad Depot. Defendant alleges that plaintiff was making an effort to strike him with a jar or container of hot coffee, and that he was acting in self-defense when he struck plaintiff. He also alleges that plaintiff had been for some time guilty of stealing doughnuts and other things from his restaurant, and on the occasion of the difficulty complained of he had just caught plaintiff in possession of some doughnuts which she had stolen from his restaurant. The trial resulted in a judgment in favor of the defendant. Plaintiff has appealed. Defendant-appellee has filed a motion in this court to dismiss the appeal on the ground that no motion for an appeal was made in open court at the same term at which the judgment was rendered; that the motion and order of appeal was had at a subsequent term of court, and no petition for an appeal was filed. On Motion to Dismiss the Appeal. The minutes of the court do not show that the motion and order of appeal [909] were taken in open court. O'n the contrary, the order of appeal signed on May 22, 1935, indicates that it was signed in 'chambers. As to the term of the court, we say in passing that the judgment was signed on November 2, 1934, and the order of appeal was had and obtained on May 22, 1935, within the term of court for the Twenty-First judicial district for the parish of Tangipahoa. In the absence of any showing that the order was entered in open court, we are not authorized to presume that the order was granted in open court. See Ducre et al. v. Succ. of Ducre, 167 La. 133, 118 So. 864. The motion for the appeal and the order tendered thereon call for the citation of the appellee. Therefore, if no citation of appeal was issued or served (as appears to he in this case), the failure cannot be imputed to appellant, who has asked for the citation of the appellee, and the order of appeal itself ordered a citation to issue. In such a case, the appeal will not be dismissed. Mioriana v. Star Checker Cab Co., Inc., 18 La.App. 333, 134 So. 278, 135 So. 724; Perkins v. Wisner, 171 La. 898, 132 So. 493. The motion to dismiss is therefore denied.