Bolton v. Mansfield Hardwood Lumber Co.

GLÁDNEY, Judge. Our first concern is appellee’s motion to dismiss the appeal.' The motion is based upon the fact that as the appeal 'was taken by or.al motion in open court at a term'other than that at which the judgment was' rendered the'" effort to appeal was abortive; that' under these circumstances it is sacramental that the appeal be taken and perfected by petition' and order of court thereon and service thereof upon the appellee'. Appellant has not filed any opposition to the motion to dismiss. .The judgment- . from- which plaintiff sought to appeal was signed July 1, 1953, It' was npt until October 30, 1953 that counsel -for plaintiff by, oral, motion in open Court asked the court a quo of the -First Judicial District for and was granted the orders of appeal made the subject of this legal issue. Manifestly, therefore, the orders of appeal were sought at a term subsequent to that in which the judgment was signed, since the new term of said court commenced in September, 1953. In Jacobsen v. McGarry, 1933, 178 La. 79, 150 So. 838, 839, in commenting upon the basis for dismissal of the appeal upon circumstances similar to those presented here, the court said: “Citation of appeal is dispensed with ■only when the appeal is applied for, either by petition or- by motion, in open court,■ at the same, term at which the judgment is rendered. Code Prac. arts. 573, 574. Under a fiction of law the appellee is considered as then in court. But, when the term passes, the appel-lee is entitled to formal citation. Code Prac. arts. 581, 582, 583. In -such a case citation is the ground .work, and, without it no proceedings can- be had on the appeal. Walker v. Martolo, 16 La. 50. Hence .appellee’s ,motion to dismiss raises a jurisdictional question, not a technical question, and must prevail.” [229] The motion is well founded and fatal to the appeal herein taken by appellant 'for the réasons above set forth. Code of Practice art. 573; Bass v. Lane, 1930, 169 La. 681, 125 So. 853; Pool v. Gaudin, 1945, 207 La. 403, 31 So.2d 424; Berg v. Horne, 1946, 26 So.2d 753; Graves v. D’Artois, 1946, 210 La. 857, 28 So.2d 457. For the reasons herein given, this appeal is dismissed at appellant’s cost.