Alfred Hiller Co. v. Hotel Grunewald Co.

On Motion to Dismiss Appeal. MONROE, C. J. Defendant and appellee moves to dismiss the appeal, on the grounds: (1) That the record is incomplete, through the instructions of plaintiff, the following documents being omitted, to wit: Answer of defendant, filed February 13, 1911; supplemental answer and call in warranty, filed December 9, 1912; exception of warrantor, filed January 15, 1913; answer of warrantor (American Banking Company), filed January -21, 1913. (2) That there is no legal petition for appeal, the petition filed not being addressed to any court. [1] 1. The pleadings mentioned are not in the transcript, nor do we find anything to indicate that they were filed in the court. Defendant filed several exceptions, and there was some evidence offered in their support, and, eventually, there was a judgment sustaining an exception of prescription and dismissing the suit, from which judgment plaintiff prosecutes the appeal. We are unable to see in what way the pleadings mentioned could affect the question to be decided on the appeal; but, even if it were shown that they had been filed, and it appeared that they [307] were needed, their absence, under the law as it now stands, would not be good ground for dismissing the appeal, since Act No. 229 of 1910 gives the appellant the right to instruct the clerk what he shall copy in the transcript, and gives the appellee the right thereafter to give similar instructions, and then declares that: “The clerks shall prepare the transcript as so directed, and, when so prepared, the appeal shall not be dismissed on the ground of the transcript being defective, but the parties and the court shall have the right to cause to be .filed thereafter any omitted portion of the record, as a supplemental transcript.” [2] 2. The petition for appeal bears the caption and reads in part: “Alfred Hiller Company, Limited, v. Hotel Grünewald Company, Limited. “No. 95,413, Civil District Court, Division A. “The petition of Alfred Hiller Company, Limited, which is the plaintiff in this cause, respectfully represents.” \ Then follow the usual allegations, and the prayer for an appeal and for citation, and the order of the judge granting the appeal and directing the citation to be served. In the case of Lukis v. Allen, 45 La. Ann. 1447, 14 South. 186, to which we are referred, it was held that: “The caption or address to the court is an essential part of, * * * and it cannot be omitted in the copy served on the defendant.” But that ruling refers to the petition which is the foundation of the suit, which is to be prepared as required by C. P. 171, 172, and which is to b'e served on the 'defendant, whereas a petition for appeal is not governed by those articles and is not to be so served. The case cited is therefore without application. C. P. 573, which provides for appeals “by petition or by motion in open court,” contains no particular directions as to the form of thé petition, though, no doubt, it contemplates that it shall be addressed to the court which rendered the judgment to be appealed from. We are of opinion, however, as was the judge a quo, apparently, that the petition in this case was sufficiently so addressed. The motion to dismiss the appeal is therefore overruled.