Atlantic Paint Co. v. Merkel

7 Pelt. 257, 1922 La. App. LEXIS 144

• Court: Louisiana Court of Appeal
• Decided: October 30, 1922
• Docket: No.8869
• Status: Published

Opinions

Atlantic Paint Co. Vs John Merkel Jr.

No.8869

Charles F.Claiborne,Judge

This is a suit for Two Hundred and Twenty Bight 62-100 dollars filed in the First City Court of the City of New Orleans under section 91 of the Constitution of 1921.

Tho defendant .'as cited at domicile.He filed an answer pleading a general denial.”Judgment was rendered against him on August island signed on August 19" 1922.

Dofendant was absent and unrepresented at ths trial. On Osp’ o-'her 7th 1022^A. copy of the judgment was served upon him sp- person.Having filed an answer he vías not entitled to notice oyen under article 0 P.E75 I!e was ^considered duly notified b^the judgment by tho fact of its being signed by the // jfu&ge. On September 14th 1922 the defsncUnt obtained an order for a suspensive appeal,and filed tho transcript in this Court, Tho plaintiff moved to dismiss tho appeal on the ground that it was taken too late,under tho provisions of Aot 128 of 1921 This act reads as follows:

^ That the manner and fora of proceedings before the City Courts of this State in cities having over one hundred thousand inhabitants,in cases where said Court has concurredt jurisdiction with District Courts of all suits for moneyed demands above one hundred dollars and now exceeding three hundred dollars,shall be governed by the general laws regulating proceedings before the District Court.Appeals shall he allowed and be returnable to the Court of Appeals,within ten days exclusive of Sundays from the rendition of the Judgment*

The same delay and limitation are prescribed by Artlele C.P.1133 except that the Code of Practice requires a "notifi- * oafcion "to the party cast which the act of 1921 omits.

Prom the date of the rendition of the judgment In this case and the signature thereof on August 19th 1988 more than " ten days " exclusive of Sunday elapsed,to September 14th when the appeal was taken.Indeed there were full twenty two legal days exclusive of Sundays.She ten days for appealing expired with September first.The law might be different if the .defendant had been entitled to a notice of Judgment.The delay foe'appealing had .expired when the notice of judgment was served on the defendant.Under the aot of 1981 we have nothing to do but to dismiss the 'appeal.The Court must dismiss ex-offioio an appeal taken after the time fixed by law." 11 1, 252-1R 60 89A435 — 34 A 318-129 La 638-18_Ct.App.74 No.8710 Ct.App 7 R.60 Our learned brother concedes that our conclusions would be correct if the act of 1981 was law.But he argues in an able opinion that this aot is unconstitutional.The point was not■ raised in this case not even in argument.The Supreme Court has decided that they will not consider the Constitutionality of an act when this issue was not raised» in the pleadings* 26 A 754 -33 A 1222-47 A 1689-108 La 152-44 La 805-114 La 847 125 La 59 and authorities there quoted.

We consider ourselves bound by those authorities and aot accordingly.

It is therefore ordered that the appeal herein be dismissed.

October 30”1982