Toca v. Rojas

On Motion to Dismiss Appeal. By the WHOLE COURT as then constituted. SOMMERYILLE, J. Appellee moves to dismiss the appeal -in this case on the ground that he was not cited and served until after the transcript had been filed in this court. It appears that appellant filed a written petition in the district court, asking for a suspensive appeal to this court, and that citation of appeal and service of notice be made upon the appellee, and the judge so ordered; but, the clerk of court failed in his duty to issue the citation and have it served until after the transcript had been filed in this court, but before the return day, as extended. This is not sufficient ground for dismissal of the appeal. The citation of appeal was served in time, under the law which provides that: [321] “No appeal of the Supreme Court shall be dismissed on account of any defect, error- or irregularity of the petition, citation or order of appeal * * * or in the citation of appeal or service thereof * * * wherever it shall not appear that such defect, error or irregularity may be imputed to the appellant or his attorney; but in all cases the court shall grant a reasonable time to correct such defects, errors or Regularities, in ease they are not waived by the appellee, and may impose upon the appellant such terms and conditions as in its discretion it may deem necessary for the attainment of justice.” Act 45, E. S. 1870, § 11, p. 100 (Revised Statutes, § 1907); Hiller v. Barrow, 144 La. 282, 80 South. 538; Taylor v. Allen, No. 24209, 151 La. 82, 91 South. 635, decided November 3, 1920. It is ordered, that the motion to dismiss the appeal be overruled. On Exception of No Cause of Action. By Division A, composed of Chief Justice PROVOSTY and Justices OVERTON and LECHE. PROVOSTY, C. J. Plaintiff sues in damages for the use of his minor son who, he alleges, was injured in the eye by the hook of a fishline negligently handled by defendant’s son. No allegation is made that the defendant’s son resides with the defendant, and because of the absence of such an allegation an exception of no cause of action was filed. It was overruled, but should have been sustained. No liability rests on the parent for the acts of the child, except by virtue of article 2317 of the Civil Code, reading: “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons .for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.” The “modification” in the case of the parent is provided for by article 2318, which reads :- “The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.” In the case of Mullins v. Blaise, 37 An. 93, the Court emphasized the fact of residing with the parent being one of the conditions requisite for responsibility. Bandry-Lacantinerie (3d Ed., vol. 15) Des Delits et Quasi-Delits, pp. 595, 597, 599, Com. on Art. 1384, C. N., at No. 2902, p. 597, says: “The law subordinates to two conditions the responsibility in question. It is required: (1) That the author of the wrong be a minor; (2) that he reside with his parents.” Indeed the language of the Code is so plain that no commentary can be necessary; and all this court can do is to apply it. The judgment appealed from is therefore set aside; the exception of no cause of action is sustained; and the suit is dismissed at the cost of plaintiff in both courts.