Babbington v. Fitzpatrick & Co.

DUFOÍTR, J. On June 6th, 1910, judgment was rendered in the City Court; notice of .judgment was served on June 9th, and, on the same day, a motion for a new trial was filed and refused in the absence of the parties. No notice of the judgment refusing a new trial was served on the party cast. On August 4th 1910, an appeal was taken to this Court; the record was lodged here on August 9th, and, in March 1911, a motion was made to dismiss the appeal on the ground that it had been applied for long after the judgment had become final. Appellant urges that the appeal came too late, having been made more than three days after the appeal was lodged in this court. We think that the motion was. timely, for the reason that it was not based on any informality or irregularity [63] in the taking or the bringing np of the appeal, bnt on' the want of the legal right to appeal. November 6th, 1911. 23 An., 38; 29 An., 435. The-issue practically is; must-notification of the judgment refusing a new trial' be given,' if the judgment be rendered in the absence of the parties? In Meyer Company vs. Vasquez recently decided by the Supreme Court, it was held that Act 45 of 1910 has taken the place of Art. 1131 C. P., as amended by Art 129 of 1888. The Act of 1910, in force-at the time this appeal was taken, provides that the-delay for appealing begins to run from the date of rendition of the judgment and imposes no obligation to give notice of refusal of a motion for a new trial. In the present case, notice of judgment was duly served on the party cast, and it is therefore immaterial to en-quire whether he was represented by counsel at the trial.- The appeal was taken more than ten days after rendition of the judgment and it is therefore not timely. Appeal dismissed.