Hibernia National Bank v. Sarah Planting & Refining Co.

On Motion to Dismiss Appeal. The opinion of the court was delivered by Watkins, J. The third opponent and appellee seeks to dismiss the appeal on the ground (1) that no citation of appeal has ever been issued to, or served upon him, as the law requires; (2) that the appellant has not furnished an appeal bond in conformity to law. The latter ground is only urged in the alternative that the former should not be sustained. I. The averment of the motion is, that no citation of appeal has been directed to the third opponent nor served upon him as required by law, either in person or otherwise. It appears from the record that the judgment appealed from was signed on the 9th of .November, 1899, in favor of the third opponent, and that the plaintiff sought to appeal by means of petition and citation. An order of appeal was regularly granted, making the appeal returnable to this court, sitting in New Orleans, on the fourth Monday of March, 1900, and according to law — fixing the amount of the bond for suspensive appeal according to law, and devolutive at one hundred dollars. A citation of appeal was issued by the clerk and placed in the hands of the sheriff; but he made a return that he had failed to make service upon the appellee on account of his absence from the State. As an answer to the motion to dismiss, the appellant’s counsel has tendered for our consideration, affidavits of the clerk and sheriff, that no fault in the premises was attributable to either the plaintiff or its counsel. We think that is evident from the record, aside from those affidavits. It appears that no proper service of citation of appeal has been made [652] since the appellee’s motion was filed, and it will be necessary chat all further proceedings be stayed until the appellee has been cited. Cockerham vs. Bosley, 52 La. Ann. 65. The objections urged to the appeal bond are (1) that the amount for which the bond was given is below that fixed in the order of appeal, and it is therein expressly stated to be for a suspensive appeal; (2) that the bond is not conditioned as the law requires, in that it declares that the appeal was made returnable on the fourth Monday of November, 1900, whereas the transcript was filed in this court on the 26th of March, 1900. Neither of these objections are at all serious. The evident intention of the appellant was to give a devolutive appeal bond, notwithstanding the term “suspensive” was inadvertently employed; and, being so considered, we think this objection is not well taken. (2) The recital in the bond that the appeal was returnable on the fourth Monday of November, 1900, is manifestly a clerical error, inasmuch as the order of court makes the appeal returnable according to law, and the citation of appeal specifies the return day as the fourth Monday of March, 1900. The motion to dismiss is denied, and it is ordered that further proceedings be suspended until appellee is cited according to law, and to this end it is directed that the case go over until the term of this court beginning the first Monday of November A. D. 1900. Blanchard, J. A motion to dismiss the appeal herein because of defective service of citation of appeal, or want of citation, having been denied, and time granted appellant to make proper citation of appeal, a renewal of the motion to dismiss is now made on the ground that the second service of citation of appeal is legally insufficient. And so it is, judged by the return of service of the second citation of appeal first made by the deputy sheriff. But a second, or amended, return made by him and certified as conforming to the facts, cures the defect. The motion to dismiss is denied.