Cockerham v. Bosley

The opinion of the court on the motion to dismiss was delivered by Blanchard, J. On the merits,, the opinion was delivered by Miller, J. On the.rehearing, the opinion was delivered by Blanchard, J. ON Motion to Dismiss Appeal. The opinion of'the court was delivered by Blanchard, J. Defendants,' appellees, move to dismiss this appeal on the ground that no notice or citation of appeal has been served on them. Appellant replies that the motion was not seasonably presented because filed more than three days after the filing of the transcript,, and urges that a motion to' dismiss an appeal must, in all cáses, be made within three days of the filing of the transcript. The transcript was filed April 11th, 1898; the motion to dismiss on May 16th, 1898. But it is a mistake .that all. motions to dismiss are required to be made within three days. There áre motions' to 'dismiss that may be filed any time prior to appearance' or 'answer. For. instance, in cases where the proper parties are not before the .court, or where the appellant has acquiesced' in the judgment. Francis vs. Lavine, 26 La. Ann. 311; Evans & Taylor vs. Succession of Etheridge, 29 La. Ann. 576; James vs. Followes, 23 La. Ann. 37. And where there has been no citation of appeal it would be impossible to hold appellee to the rule of filing motions to dismiss within three days. lie is not before the appellate court at all until cited or given notice of appeal as provided by law. He is not supposed to [67] know there is an. apppeal until -cited, or given notice by the taking of the appeal in open-court at the-session of court whereat the-judgment Was-rendered. But if he should happen to become apprised in some other way that an appeal had been petitioned for, an order •granted- and the transcript filed in the appellate court, he may- at. any time appear and move its dismissal for want of notice, or citation, where the -appearance is for that sole purpose. ,- - . It is such a motion as this that is now before us — one predicated upon want of notice, or citation. The judgment herein was rendered on August 14th, 1897. On January 6th, following, plaintiff petitioned for a devolutive appeal and an order therefor was granted returnable to this court on the .second Monday of April, 1898. Citation of appeal to appellees to 'answer the appeal was asked and ordered, and we find in the record what purport to be citations, addressed to each of defendants, but no return of service whatever thereon. It appéars to be a fact that there was no service. Besides, the citations referred to notify the appellees to appear in the office of the clerk of the Ninth District Court, Parish of Red River, in the town óf Coushatta, and file their answer to the demand of the petition within ten days, whereas Act No. 6 of the Acts of 1896, amending and re-enacting Article 683 of the Code of Practice, requires the appellee to be cited to appear before the court of appeal at its next term or return day for the parish, if there be sufficient time for doing so after allowing a delay of fifteen days from date of service of citation, or from the date of adjournment of the court when -the appeal has been granted in open court. Appellees insisting upon their objection of want of citation and not waiving same by subsequent appearance or answer, the court must take action thereon. But it is well settled that an appeal will not be dismissed because of irregularity in the citation of appeal and return thereon when citation has'been prayed for, nor because of insufficient service of citation .of appeal not attributable to the appellant, nor because of failure of the clerk to issue proper citation when asked for, or the sheriff to serve when issued. Phillips vs. Creditors, 37 La. Ann. 701; Murphy vs. Ins. Co., 33 La. Ann. 454; Borde vs. Erskine, 33 La. Ann. 873; Succession of Townsend, 36 La. Ann. 447. Indeed the matter is settled by the statute law itself. . Section 36 of the Revised Statutes declares that “no • appeal ■ to the Supreme [68] Court shall be dismissed on account of any defect, error, or irregularity * * * in the citation of appeal or service thereof * * * whenever it shall not appear that such defect, error, or irregularity is imputed to the appellant, but in all (such) cases the court shall grant a reasonable time to correct such errors or irregularities.” It is, therefore, ordered, adjudged and decreed that the motion to dismiss be denied, and that this case be continued until the next term of this court with directions to the appellant meanwhile to cause proper citation of appeal to issue to and be served upon the appellees.