Cohen v. Otis

LAND, J. Meyer Gohen obtained judgment in the First city court of New Orleans against Henry A. Otis on February 23, 1910. The judgment was rendered in the absence of the parties. Notice of judgment was served on Otis on Wednesday, February 23, 1910. On Tuesday March 1, 1910, Otis obtained an order for a suspensive appeal, and on the same day filed bond and carried the case to the Court of Appeal. Plaintiff moved to dismiss the appeal on the ground, among others, that the appeal was taken too late." This motion was overruled, and the case is before the Supreme Court on a writ of review. Article 1131 of the Code of Practice as amended and re-enacted by Act No. 129 of 1888, p. 188, reads as follows, to wit: “No appeal from a judgment before a justice or judge of a city court in the parish of Orleans, shall stay execution unless the said appeal be taken three days after the final judgment, if it has been pronounced in the presence of the parties, or within three days after the notification of it, if it has been rendered in the absence or on the default of one of the parties, and unless the appellant shall execute his bond, etc. Judgment shall not be final until action by the court upon any motion for a new trial which may have been made within the delay now authorized by law or the rules of the court.” The delay for appeal commences to run from the date of the judgment or from the date of its -notification. Simonton v. Mitchel, 113 La. 923, 37 South. 877. As the defendant did not file a motion for a new trial in the city court, he is not within the statutory exception. We construe the statute to mean that the delay for an appeal runs if not suspended by the filing of a motion for a new trial within the three days. We may add that we have been referred to no law or rule of court authorizing a delay for filing a motion for a new trial in the city court. It 'is therefore ordered that the judgment of the Court of Appeal herein be reversed, and it is now ordered that the appeal taken by the defendant to the Court of Appeal be dismissed, and that the defendant pay the costs in both appellate courts.