Lee v. Foley

On Motion to Dismiss. NICHOLLS, J. The plaintiff brought this action to recover a judgment against defendant for damages for personal injury alleged to have been received by himself through the negligence of one of his (defendant’s) employés. Being cast in the action, he applied for and obtained an appeal. Defendant asks its dismissal on the ground -that in his motion for the appeal he did not allege that there was error in the judgment, or that he had been in any way or manner aggrieved by it, and he was therefore without any interest to appeal. Appellee cites Rausch v. Barrere, 109 La. 563, 33 South. 602, and articles 560 and 571 of the Code of Practice in support of the correctness of that proposition. The appeal in Rausch v. Barrere was not dismissed. The case was decided upon its merits. The language which was used therein in the opinion of this court referred to the action of the district court* itself as to granting or not the appeal prayed for, and not to the allegations to be made in the motion. We know of no law requiring parties to actions applying for an appeal to declare in the motion that there was error in the judgment, or that they were aggrieved by it. The very fact of asking for an appeal evidences the fact that they consider themselves aggrieved, whether there was or was not error in the judgment. It is the very object of the appeal itself. Article 571 of [665] the Code of Practice deals with third parties who prima facie have no concern with the judgment. Perhaps a person seeking to appeal from a judgment apparently in his favor, or one confessed hy himself,' would state that he was aggrieved; but that is not the situation in this case. Article 897 of the Code of Practice authorizes an assignment of errors to be made by the appellant within 10 days after the record is brought up, and this assignment is only required in practice in exceptional cases. Article 558 of the Code declares that the party who believes himself aggrieved by the judgment against him may pray for an appeal. It does not require him to declare the existence of such a belief on his part. We have on numerous occasions announced our reluctance to dismissing appeals in limine, and before knowing what issues may be raised between the parties by the record. We think the motion to dismiss is without merit, and it is hereby refused, and the appeal is maintained. See, on this subject, Mestier & Co. v. Chevalier Paving Co., 108 La. 563, 32 South. 520.