Defilice v. Autin

149 So. 889

• Court: Louisiana Court of Appeal
• Decided: October 5, 1933
• Docket: No. 1202.
• Status: Published

Opinion

LE BLANC, Judge.

We search the record in this case in vain for an order of appeal granted by the district judge. Neither do we find an extract of the minutes of court to show that an appeal was granted on motion made in open court. True, we find a bond for a devolutive appeal furnished by the defendant, but even this bond does not show that the appeal was taken to this court.

The order of the judge granting the appeal is the foundation of the appeal, and the appellate court will ex officio notice the lack of such an order,.and on their own motion dismiss the appeal. Gagneaux v. Desonier, 104 La. 648, 29 So. 282. The mere filing of an appeal bond, conceding the bond in this case to be valid, does not divest the lower court of jurisdiction. The order of appeal, no matter ill what form the application is made, is essential. McKnight v. Denouvion, 22 La. Ann. 373.

This whole subject is extensively discussed in the case of Gagneaux v. Desonier, supra, and is also commented on at length by this court in the case of Nona Mills Co., Ltd., v. W. W. Gary Lumber Company, 15 La. App. 560, 132 So. 257 (on rehearing).

Further remarks would be more in the nature of repetition, which we deem unnecessary.

For the reasons stated, it is ordered that the appeal herein be, and the same is hereby, dismissed at the appellant’s costs.

MOUTON, J., not participating.