Friedlander v. Friedman

On Motion to Dismiss. LAND, J. This is a petitory action to re-' cover a five-sixteenths undivided interest in certain tracts of land in the possession of the defendant and the sum of $2,250 rents and revenues, coupled with an action to annul certain sales of land under which the said defendant claims title. Defendant appeared by counsel and excepted that she had not been properly cited, and then filed an exception of no legal right or cause of action, coupled with an alternative plea of prescription of one, two, three, five, and ten years. There was judgment in favor of defendant maintaining the exception of no cause or [143] right, of action, and dismissing plaintiff’s suit with costs. This judgment was signed in open court on June 7, 1915. [1] On June 7, 1916, the plaintiff filed a petition for and obtained an order of appeal, returnable to the Supreme Court on or before the fourth Monday of July, 1916. The bond of appeal was filed on June 7, 1916, and on the same day citation of appeal issued and was served on the defendant and appellee, who has filed a motion in this court to dismiss said appeal on the ground: “That the petition and bond for an appeal was not filed with the cleric of the Twenty-Eighth judicial district court of the parish of St. .Charles within the 12 months as the law requires.” Counsel on neither side have cited any authorities, but the court finds that in Commercial Bank v. Sanders, 132 La. 174, 61 South. 155, on an identical state of facts, it was held that the appeal would not be dismissed where it was taken within the year following the rendition of the judgment. Besides the authorities cited in the syllabus in that case, see Tupery v. Edmondson, 29 La. Ann. 850, citing State ex rel. Mercier v. Judge, 29 La. Ann. 224. Motion to dismiss overruled.