New Orleans, Fort Jackson & Grand Isle Railroad v. McNeely

17 So. 798, 47 La. Ann. 1298, 1895 La. LEXIS 624

Opinions

The opinion of the court was delivered by

Breaux, J.

The plaintiff sues to expropriate a small triangular lot of ground situated in Algiers. Plaintiff tendered to the defendant the sum of fifty dollars for the lot, which the latter declined to accept.

The defendant denies plaintiff’s allegation, and reconvened for damages and attorney’s fees, which she fixes at more than three thousand dollars. The jury’s verdict sustained the prayer to expropriate the land and assessed the value of the land expropriated at five hundred dollars. After the verdict the defendant abandoned his demands in reconvention for damages, and entered a remittitur of one dollar, thereby reducing the verdict tn four hundred and ninety-nine dollars, and judgment was signed for the amount last stated.

The defendant moves to dismiss the appeal on the ground that this court is without jurisdiction ratione materise; on the grounds, further, that the transcript was not filed in time, and, lastly, that the plaintiff did not deposit the amount of the judgment with the sheriff.

With reference to the jurisdiction of this oourt, ratione materise, it is settled that a remittitur after the verdict has no more effect on the rights of the appellant than a remittitur has after judgment in a ease not tried by jury. It is governed by the same rule in so far as relates to appellant’s right of appeal.

In Gayden vs. Railroad Company, 39 An. 269, 271, the court decided that a remittitur entered after the verdict did not prejudice the defendant’s right to appeal, and cited several decisions in support of the court’s conclusion.

RELATIVE TO THE FILING OF THE TRANSCRIPT.

The delays had not elapsed, and the plaintiff was within the required time when it was filed in this court on the 4th of April.

The order of appeal was granted on the 19th day of March. The plaintiff’s transcript was filed within the three judicial days allowed by this court and the delay of fifteen days provided by a special statute. R. S. 1490; C. P. 589.

REGARDING A DEPOSIT OF THE AMOUNT OF THE JUDGMENT WITH THE SHERIFF.

The effect of the deposit by the corporation is to pass title from the owner to the corporation. It does not relate to the right of appeal. It remains unaffected by the deposit.