Guy v. McDuffie

49 So. 222, 123 La. 641, 1909 La. LEXIS 759

• Court: Supreme Court of Louisiana
• Decided: April 26, 1909
• Docket: No. 17,403
• Status: Published

Opinions

On Motion to Dismiss.

LAND, J.

On November 7, 1908, judgment was read and signed in open court, recognizing the plaintiffs as owners of the fractional E. y2 of section 1, in township 20 N., of range 16 W., and entitled to the possession thereof free from the claims of the defendants, and that the notice of location filed by defendants on April 10, 1908, recorded in Conveyance Book 47, at page 587, be canceled and erased. It was further ordered that the claim of plaintiffs for damages be dismissed as in ease of nonsuit and that defendants pay all costs of suit, including $10 as fee of curator ad hoc.

On November 14, 1908, the defendants E. D. Lingold and Mrs. Minnie J. Armstrong-filed in open court a motion for a devolutive appeal, and the motion was granted, and the amount of bond fixed at $100. The bond was given, and the record was seasonably filed in the clerk’s office of the Supreme Court.

Plaintiffs have moved to dismiss the appeal on the ground that L. M. McDuffie, one of the defendants, has not been made a party to the appeal, either as an appellant oían appellee.

This is a mistake. L. M. McDuffie is before us as an appellee, because, in an appeal taken by motion in open court at the same term, all parties to the suit who are not appellants are appellees, and all are concluded by the judgment rendered on appeal. Conery, Jr., v. Waterworks, 42 La. Ann. 441, 7 South. 590.

Where an appeal is taken by motion at the same term, no citation of appeal or other notice to the appellee is necessary. Code Prac. arts. 573, 574. It follows that the legal effect of such a motion is equivalent to the citation of all parties not appellants Sauer v. Union Oil Co., 43 La. Ann. 699, 9 South. 566. See, also, Vallee v. Hunsberry, 108 La. 136, 32 South. 359.

In Richardson v. Zuntz, 26 La. Ann. 313, a motion was made to dismiss the appeal on the ground that all the parties interested in the judgment had not been made parties to the appeal. The court, speaking through Ludeling, C. J., said:

“The- last objection is untenable. We find in the record an order for an appeal granted on motion in open court, a.nd the bond is executed in favor of the clerk. We think that all the parties who have not appealed are appellees.”

This has become a rule of practice too well settled for dispute.

The motion to dismiss is therefore overruled.