David v. Rode

On Motion to Dismiss. The opinion of the Court was delivered by Todd, J. The motion to dismiss the appeal is made by plaintiff and appellee on two grounds : 1. Because the appellee is not given, in the order and citation of appeal, the delay to which the law entitles him. 2. Because there is no seal on the citation of appeal. First. The petition for an appeal was filed and the order granted on the 22d of June, 1881. Citation issued same day. The appeal was made returnable on 1st Monday of July, at Opelousas. Service acknowledged on the 30th of June, by the counsel for plaintiff and appellee, and served on the defendant, the other appellee, on the 25th of June, and the return day was the 5th of July. The plaintiff and appellee resides in the City of New Orleans, and the defendant in the Parish of St. Mary. “ The delay to he expressed in the citation consists of ten days, to be counted from the time the citation has been served, which are allowed to the defendant to comply with the demand of the petition, if the defendant reside in the place where the court is held, or within ten miles from such place. If the defendant reside at a greater distance, the aforesaid delay shall be increased by one day for every ten miles that his residence is distant from the place of holding the court, before which he is cited to appear.” C. P. 180. It is evident in this case, that the delays in which the appellee had to answer had not expired on the day fixed in the order of appeal, and that the appellee did not have the delays to which he was legally [963] entitled. On referring however to the petition of appeal, we find that the return day was not suggested by the appellant, but was fixed by the Judge granting the order on his own motion, and that therefore the error mentioned was not a fault imputable to the appellant, and therefore does not come under the authority of the cases cited. Second. We cannot ascertain from the record whether the Citation of appeal was or not without the seal of the court, and therefore this part of the motion is without force. We cannot dismiss the appeal, but must continue the case, and thus allow the appellee the delays denied in the order and citation of appeal.