Ryland v. Harve M. Wheeler Lumber Co.

On Motion to Dismiss Appeal. MONROE, C. J. Defendant having appealed front a judgment awarding plaintiff damages for personal injuries alleged to have been sustained while in the discharge of functions pertaining to his employment, plaintiff moves that the appeal be dismissed, on the ground that it was obtained by motion at a term of court subsequent to that at which it was rendered, and that it (defendant) was not cited, or prayed to be cited, to answer thereto. The transcript contains the following “statement of facts” by the trial judge, to wit: “This cause was tried before the undersigned on June 8, 1913, and taken under advisement for decision on briefs to be filed by both sides. August and September being the months of vacation . of the Eighth district court, the case was decided and judgment rendered and signed in open court the 20th day of October, 1917. This date was not of regular term of court for Catahoula parish. The court opened for the express purposes of rendering and signing judgment in this case, and immediately after doing so adjourned sine die. The motion for new trial in this case was filed on Monday, the first legal day following the date of judgment. The motion for new trial was taken up, tried, and overruled on the [first] day the court was opened and in session after signing the judgment.” The minutes of the court show the rendition and signing of the judgment, the granting of an appeal, and (with the statement of the judge) the immediate adjournment of the court sine die on October 20, 1917, the hearing and overruling on November 12th of a motion for new trial (which had been filed on October 22d); and the filing of a motion for, and granting of, an appeal on the same day, followed on Novemfoer 21st by the filing of a bond for a suspensive appeal. Opinion. [1,2] The Constitution (article 117) requires the district courts to hold continuous “sessions” during ten months of the year, and the session thus required to be held is the equivalent of the “term” referred to in C. P. art. 573, in declaring that— “Whoever intends to appeal, may do so either by petition, or by motion in open court at the same term at which the judgment was rendered,” etc. Act No. 163 of 1898; State ex rel. Murray v. Judge, 50 La. Ann. 985, 24 South. 132; McCutchen v. Hudson, 132 La. 178, 61 South. 157. As it appears from the statement of the trial judge that August and September are the months during which his court is in vacation, it follows that the months from October to July, inclusive, are the ten months constituting his continuous term or session, and that the appeal herein taken on November 12th from a judgment rendered on Oc [791] tober 20th. was taken at the same term at which the judgment was rendered. If it he argued that it was not taken within the ten days required to 'stay execution, the answer is: First, that that question is not presented by the motion to dismiss; and, second, that the appeal was taken within that delay, since the judgment did not become executory or appealable until signed, was not ready for signature until after the expiration of three days from its rendition, until which the signing was premature and ineffectual, and, by reason of the filing of a motion for new trial within that period, did not become executory, or appealable, until the motion had been denied. Act No. 40 of 1904; Mercer v. Natchez, B. & S. Ry.. Co., 136 La. 187, 66 South. 774; State ex rel. Mack Wellman v. Bell, Judge, 77 South. 493, 142 La. 662, No. 22872 of -the docket of this court. It may be stated in this connection that the word “rendered,” as used in C. P. arts. 568, 565, 570, 571, 573 (and perhaps other articles), is to be construed with article 546 of the Code of Practice, as also with Act No. 40 of 1904, above cited, and, as thus construed, means rendered and signed, and that it is from the signing (if not premature), and not from the rendition, of a judgment that it becomes ex-ecutory and appealable, and that the delay within which the appeal may be taken begins to run. 1 Hen. Dig. p. 730, IV. The motion to dismiss is therefore overruled.