Campbell v. Deville

Supreme Court of Louisiana

Campbell v. Deville

112 So. 491, 163 La. 575, 1922 La. LEXIS 2544

CourtSupreme Court of Louisiana

DecidedFebruary 27, 1922

DocketNo. 24355.

StatusPublished

Cited by9 cases

This text of 112 So. 491 (Campbell v. Deville) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Campbell v. Deville, 112 So. 491, 163 La. 575, 1922 La. LEXIS 2544 (La. 1922).

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Opinions

On Motion to Dismiss.

OVERTON, J.

The defendant was condemned by judgment rendered in the court below to pay plaintiff $250 as damages, with legal interest from the date of judgment till paid. The defendant was then granted an appeal returnable to this court on June 1, 1920, but failed to file the transcript until November 22, 1920. No extension of time was granted him within which to file it. On December 2, 1920, plaintiff and appellee filed an answer to the appeal, complaining that she was not compensated sufficiently by the judgment appealed from and praying that it be increased from $250 to $5,000, or to so much of the latter amount as this court may think should be allowed. On January 9, 1922, plaintiff and appellee filed the motion to dismiss the appeal, now under consideration, urging, as ground for its dismissal, the fact that the transcript was not filed in this court until several months after the expiration of the return day.

When appellant failed to' file the transcript timely, this court did not lose all right to pass on the appeal, for the appellee, by this failure, acquired the right to bring the record here and to move for the dismissal of the appeal, or to pray for judgment, in the same manner as if the record had been brought up by the appellant. C. P. arts. 590 and 884. The appellee, however, did not elect to pursue either of these courses, but instead, when the appellant did file the transcript, she availed herself of the appeal by praying for an increase in the judgment, thereby virtually joining in the appeal. This *577 precludes her from now dismissing the appeal. Michel v. Meyer, 27 La. Ann. 173; Jones v. Shreveport, 28 La. Ann. 835; Jacobs v. Yale & Bowling, 39 La. Ann. 359, 1 So. 822; Claflin & Co. v. Lisso & Scbeen, 31 La. Ann. 171.

It is therefore ordered and decreed that the motion to dismiss be overruled. ■

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On Motion to Dismiss.

OVERTON, J.

The defendant was condemned by judgment rendered in the court below to pay plaintiff $250 as damages, with legal interest from the date of judgment till paid. The defendant was then granted an appeal returnable to this court on June 1, 1920, but failed to file the transcript until November 22, 1920. No extension of time was granted him within which to file it. On December 2, 1920, plaintiff and appellee filed an answer to the appeal, complaining that she was not compensated sufficiently by the judgment appealed from and praying that it be increased from $250 to $5,000, or to so much of the latter amount as this court may think should be allowed. On January 9, 1922, plaintiff and appellee filed the motion to dismiss the appeal, now under consideration, urging, as ground for its dismissal, the fact that the transcript was not filed in this court until several months after the expiration of the return day.

When appellant failed to' file the transcript timely, this court did not lose all right to pass on the appeal, for the appellee, by this failure, acquired the right to bring the record here and to move for the dismissal of the appeal, or to pray for judgment, in the same manner as if the record had been brought up by the appellant. C. P. arts. 590 and 884. The appellee, however, did not elect to pursue either of these courses, but instead, when the appellant did file the transcript, she availed herself of the appeal by praying for an increase in the judgment, thereby virtually joining in the appeal. This *577 precludes her from now dismissing the appeal. Michel v. Meyer, 27 La. Ann. 173; Jones v. Shreveport, 28 La. Ann. 835; Jacobs v. Yale & Bowling, 39 La. Ann. 359, 1 So. 822; Claflin & Co. v. Lisso & Scbeen, 31 La. Ann. 171.

It is therefore ordered and decreed that the motion to dismiss be overruled. ■

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112 So. 491, 163 La. 575, 1922 La. LEXIS 2544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-deville-la-1922.

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