Scivicque v. Lyon Lumber Co.

LECHE, J. The judgment in this case was rendered in open court, March 4, 1926, and it was read and signed in open court, March 29, 1926, in the parish of Livingston. The order of appeal was signed in a written motion, in the parish of Tangipahoa, at chambers, on January 27, 1927. No citation of appeal was prayed for or ordered. Defendant, who is appellee, moves to dismiss the appeal. The term of court at which the judgment was rendered, expired July 16, 1926, and the subsequent term began on September 7, 1926. The order of appeal was signed on January 27, 1927. It was not signed at the same term during which the judgment was rendered. It was signed at chambers in another parish, no citation of appeal was prayed for, none was ordered served, and none was served. Since writing the foregoing, plaintiff, who is appellant, has filed a brief in which he claims that appellee has waived its right to have the appeal dismissed, because it has made an appearance in this court, urging other grounds of defense. The record fails to disclose any such appearance. The case was submitted on brief by both parties. Defendant filed in time, in this court, its motion to dismiss, together with authorities to sustain the motion, and at the same time, filed a brief on the merits of the case, in which at its inception it mentions with reservation that it had already filed a motion to dismiss. It filed no answer to the appeal or other pleas of any kind, outside the motion to dismiss. An appearance which waives citation is an answer, a plea, or a motion of some kind on other matters, and not the mere written brief of the attorney. Collier vs. M. L. & T. R. R. & S. S. Co., [63] 41 La. Ann. 37, 5 South. 537. Motions to dismiss are always heard in an appellate court at the same time as argument on the merits, and where the case is submitted on brief, it necessarily follows that briefs on both questions may be filed at the same time. The motion to dismiss must therefore prevail and it is ordered that the appeal herein be dismissed.