Lacy v. Flucker

Supreme Court of Louisiana

Lacy v. Flucker

1 La. 50

CourtSupreme Court of Louisiana

DecidedMarch 15, 1830

StatusPublished

Cited by2 cases

This text of 1 La. 50 (Lacy v. Flucker) 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

Lacy v. Flucker, 1 La. 50 (La. 1830).

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Opinion

Mathews J.

. t delivered the opinion of the court. This suit is commenced on a curator’s bond — judgment was taken by default which was afterwards made final and the defendant appealed.

The record contains no statement of facts or bills of exceptions, nor is there any assignment of errors as apparent on its face regularly made in this .court. $.n assignment was offered after the expiration of ten days, within which time it is required to be made by‘the art. 897 of the Code of Practice, but was opposed by the counsel for the appellee, who had previous to any motion to dismiss the appeal filed an answer, in consequence of the omission to move for a dismissal before filing the answer on the appeal, it is contended on the part of the appellant that the right to cause it, to be dismissed is waived, that the cause must be examined on its merits, and that an assignment of errors ought still to be admitted. It is true, in some instances, that -the acts done by one party in a suit, may destroy advantages of which he might have availed himself by a different course of proceeding, and place his adversary in a better situation than he would have been if the preliminary steps had [52]*52been pursued. But unless by admissions in _ . . . . the pleadings on one side, it is not easy to conceive how defects of pleading on the other can be remedied. In the present case the appellee first required a confirmation of the judgment of the court below, and afterwards claimed a dismissal of the appeal on account of the want of statement of facts or assignment of errors. The cause comes up in such a state, that it is impossible to investigate it on its merits, without the aid of such an assignment of errors as is required by the Code of Practice. To affirm or reverse the judgment, would be to proceed without adequate lights to guide us in our course. The article of the Code of Practice above cited is peremptory, that when an appellant does not rely wholly, or in part, k 1 J J1 r 7 on a statement of facts, an exception to the # 1 .judges opinion or special verdict to sustain his ° L appeal: but on errors of law appearing on the 11 11 ° face of the record, he must file a written pa-1 Per a^e<^§*ng specially such errors, within ten days after the record is brought up, otherwise, his appeal shall be rejected. Now it is believed that the ordinary plea of no error on an appeal does not cure the want of an as- . signment of errors in the planner required by the Code of Practice.

When the ap-■peiiant relies Bolely upon errors ofiaw, apparent on the face of the record, they must be spe-. ciaiiy assigned within ten days after the record is brought up, peaTwiif beGdis" missed. The ordinary plea of no error on an appeal, does not cure the want of an hs-signmenfc of or-row*

[53]*53It is thefore ordered, and that this appeal be dismissed at the costs of the appellant.

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Mathews J.

. t delivered the opinion of the court. This suit is commenced on a curator’s bond — judgment was taken by default which was afterwards made final and the defendant appealed.

The record contains no statement of facts or bills of exceptions, nor is there any assignment of errors as apparent on its face regularly made in this .court. $.n assignment was offered after the expiration of ten days, within which time it is required to be made by‘the art. 897 of the Code of Practice, but was opposed by the counsel for the appellee, who had previous to any motion to dismiss the appeal filed an answer, in consequence of the omission to move for a dismissal before filing the answer on the appeal, it is contended on the part of the appellant that the right to cause it, to be dismissed is waived, that the cause must be examined on its merits, and that an assignment of errors ought still to be admitted. It is true, in some instances, that -the acts done by one party in a suit, may destroy advantages of which he might have availed himself by a different course of proceeding, and place his adversary in a better situation than he would have been if the preliminary steps had [52]*52been pursued. But unless by admissions in _ . . . . the pleadings on one side, it is not easy to conceive how defects of pleading on the other can be remedied. In the present case the appellee first required a confirmation of the judgment of the court below, and afterwards claimed a dismissal of the appeal on account of the want of statement of facts or assignment of errors. The cause comes up in such a state, that it is impossible to investigate it on its merits, without the aid of such an assignment of errors as is required by the Code of Practice. To affirm or reverse the judgment, would be to proceed without adequate lights to guide us in our course. The article of the Code of Practice above cited is peremptory, that when an appellant does not rely wholly, or in part, k 1 J J1 r 7 on a statement of facts, an exception to the # 1 .judges opinion or special verdict to sustain his ° L appeal: but on errors of law appearing on the 11 11 ° face of the record, he must file a written pa-1 Per a^e<^§*ng specially such errors, within ten days after the record is brought up, otherwise, his appeal shall be rejected. Now it is believed that the ordinary plea of no error on an appeal does not cure the want of an as- . signment of errors in the planner required by the Code of Practice.

When the ap-■peiiant relies Bolely upon errors ofiaw, apparent on the face of the record, they must be spe-. ciaiiy assigned within ten days after the record is brought up, peaTwiif beGdis" missed. The ordinary plea of no error on an appeal, does not cure the want of an hs-signmenfc of or-row*

[53]*53It is thefore ordered, and that this appeal be dismissed at the costs of the appellant.

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Bluebook (online)

1 La. 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lacy-v-flucker-la-1830.

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