McCormick v. Alfred S. Amer Co.

59 So. 127, 131 La. 220, 1911 La. LEXIS 861

• Court: Supreme Court of Louisiana
• Decided: October 16, 1911
• Docket: No. 19,001
• Status: Published

Opinions

On Motion to Dismiss.

BREAUX, C. J.

Plaintiffs urge as ground for dismissing the appeal that the motion of appellant for an appeal was made by and on behalf of the counsel of defendant in their own behalf, and not by defendant.

[1] The motion for the appeal reads as follows:

“James Legendre, Edward Rightor, DenegreBlair and Leovy, counsel for defendant, aver that the judgment rendered is contrary to the law and the evidence, and that the ‘mover’ desires to appeal.”

Evidently, the word “mover,” used in the motion for an appeal, refers to one person and not to several.

That one person could only be the defendant, appellant, and it cannot be that these attorneys in using the word “mover” intended to refer to themselves.

The word indicates that they meant the defendant. It could refer to no one else.

A somewhat similar question was raised in Ansley v. Stuart, 123 La. 334, 48 South. 953; also, in Alba v. Provident Society, 118 La. 1030, 43 South. 663.

The court held in those cases that the word “mover” did not refer to the several attorneys employed in the case, but that it related to the appellant.

In Voelkel v. Aurich, 118 La. 526, 43 South. 151, there were two attorneys. The word used was in the plural. The court held that it must have meant the attorneys, and not the appellant.

We have seen that the present case is different, and leads to an entirely different conclusion.

Looking to the substance of things, and not to form, we do not think that we should dismiss the appeal.

The attorneys in this case have no interest whatever in the appeal. Nothing indicates that they were referring to themselves as appellants.

From all points of view, it is very evident that the word used, to wit, “mover,” meant the defendant, and not the attorneys, who would have been referred to as movers.

For reasons stated, it is ordered, adjudged, and decreed that the motion filed to dismiss the appeal is overruled.