Kerlec v. New Orleans Land Co.

BREAUX, C. J. Appeal of Mrs. Armand Kerlee and others from judgment rendered in the civil district court. Appellee moved to dismiss the appeal alleging that some of the appellees have not been cited. The order of appeal was dated November 2, 1910. In due time thereafter, the record of appeal was filed in this court. The day after it had been filed, appellee’s motion to dismiss the appeal was filed. The court sustained the motion to dismiss the appeal, and remanded the case in order [113] that the parties to the judgment might all be made parties. This order was made on the 31st day of January, 1911. In March following, the appellees accepted service of the petition for an appeal and of the order of appeal., Appellant asks that it he' decided that, as relates to service, the law has been complied with, and that it be decreed that all parties appellees are now properly before the court. The New Orleans Land Company, appellee, through learned counsel, urges .that a citation of appeal should always be served before the return day of the appeal, and that it was now too late, although the parties have accepted service as before mentioned. This appellee further urges that this court is without jurisdiction ratione materias. We take up the first ground, to wit, that appellant has lost her right of appeal because of delay. As relates to this ground, we cannot agree with learned counsel. There were parties plaintiff and defendant before the court when it was ordered that all appellees be made parties. There was no extraordinary delay after the court’s order had been issued granting-leave to the appellants to make other parties to the appeal. There were a number of appellees; one of the appellees did not reside in this city. [1] By this acceptance of service the parties who made themselves parties to the appeal cannot be heard to urge that plaintiff and appellant has lost her right of appeal by her delay in matter of citation of appeal. It is true, as contended, that the motion to dismiss was filed after the return day, but no mention was made of that fact at the time that the motion to dismiss (because some of the appellees were not made parties) was filed. The only complaint is that all the appellees were not parties. [2] When it does not appear that the neglect to make parties is owing to some intention to take advantage, this court has always permitted the making of other parties to the appeal. In Succession of Romero, 25 La. Ann. 534, parties were made by order of this court. The right lias never been denied since. Now as to the want of jurisdiction suggested by appellees in argument only: That will have to be considered later. The only question now is as to the parties to the appeal. Eor reasons stated, it is ordered, adjudged, and decreed that those who accepted service in this case and waived citation are now parties to the appeal as appellees, and as such are before the court. It follows that the application of plaintiff and appellant is granted in this respect, and that the argument of defendant and appellee in opposition is not sustained.