McGregor, Alloway & Co. v. Barker

12 La. Ann. 289

• Court: Supreme Court of Louisiana
• Decided: April 15, 1857
• Status: Published

Opinions

The opinion of the court on the motion to dismiss the appeal was delivered by

Merrick, C. J.

A motion has been made in this case to dismiss the appeal. The grounds stated in the motion are:

1st. The order allowing the appeal was granted and citation of appeál served before the judgment appealed from was signed.

2d. The appeal bond filed purports to be given in a different cause.

3d. The condition of the bond is insufficient for a suspensive appeal.

We shall only notice the first point, the others being unsupported by the facts. The judgment was rendered on the 30th day of June, 1856, and the order of appeal was granted by the Judge and the appeal bond filed on the tenth of July, the judgment not having been signed until the 12th day of July, two days after the order allowing of the appeal.

It is contended that the appeal was prematurely taken and ought to be dismissed.

We have carefully examined the cases of Wright v. McNair, 7 L. R. 513; Cooley v. Seymour, 9 L. R. 275; Tissot v. Bowles, 18 L. R. 30; Whittemore v. Waits, 4 R. R. 47; Mechanics' Bank v. Walton, 7 R. 451, and 9 An. 42. These all appear to be cases in which the judgment appealed from had not been signed at the time the transcript of appeal was made out. The older oases were decided before the Act of 1839, curing certain defects, and the Act of 1843, allowing an appeal by motion in open court, were passed.

The question now presented is, whether, where an appeal is taken at the same term at which the judgment is signed, hut before the judgment is actually perfected by the signature of the judge, it is such a fault on the part of the appellant as to occasion the dismissal of the appeal.

The 19th section of the Act of the Legislature approved March 20th, 1889, provides that thereafter “ no appeal to the Supreme Court shall be dismissed on account of any defeat, error or irregularity in the petition or ordw of appeal., or in the certificate of the Clerk or Judge, or in the citation of appeal, or • service thereof, or because the appeal was not made returnable at the next term of the Supreme Court, whenever it shall not appear that such defect, error or irregularity is imputed to the appellant; but in all such cases, the court shall grant a reasonable time to correct such errors or irregularities, (in case they are not waived by the appellee,) and may impose on the appellant such terms and conditions as in their discretion they may deem necessary for the attainment of justice, and may also impose such fines on the officer who shall have caused such irregularities, as'they may deem proportioned to the offence.”

Now, the judgment is pronounced in court publicly and usually in the presence of the parties. But the judgment is not often signed in their presence, but usually in the Clerk’s office, or in the court room, at the pleasure of the Judge and when he has leisure at the close of the term, for that purpose.

By the 20th section of the Act just referred to, it is.made the duty of the Judge in the country parishes to sign all final judgments before the adjournment of the court, whether the three judicial days have or have not elapsed since they were rendered. Acts 1839, p. 164.

Under this statute, in some of the parishes, the custom has been to make the signing of the judgments the last thing to be done by the Judge before adjourning for the term, and in such cases, under the Act of 1843, p. 40, the motion to appeal has usually been made immediately after the motion for the new trial has been overruled, without waiting until the Judge has affixed his signature to the judgment, which would then be too late. It would be difficult to say that the suitor is in fault for waiting the pleasure of the Judge to sign in such case.

So too in the city courts, the signing of the judgment is more particularly within the knowledge of the Judge than the counsel, and we do not think the error in the present case is to be imputed to the appellant. It is true that he might have assured himself that the judgment was signed, by an inspection of the record upon the first opportunity; but as three judicial days had elapsed, and the term was closed at which the judgment was rendered, ho had a right to suppose that the Judge had done his duty and affixed his signature to the judgment, and that the Judge would not order the appeal without so doing.

The record containing the judgment properly signed is before us, and we see no reason to dismiss the appeal in this case on the objection made.

The motion to dismiss is, therefore, overruled.