Orleans & J. Ry. Co. v. International Const. Co.

37 So. 10, 113 La. 409, 1903 La. LEXIS 586

• Court: Supreme Court of Louisiana
• Decided: March 2, 1903
• Docket: No. 14,631
• Status: Published

Opinions

On Motion to Dismiss.

PROVOSTY, J.

The appeal is moved to be dismissed on two grounds: First, that it was taken too late, one year having expired after the rendition of the judgment; second, that the return day was fixed for too early a day, sufficient time not being allowed to' cite the appellee.

The appeal was taken more than a year after the rendition of the judgment, but less than a year after its signature; the question is therefore whether the delay for appeal runs from the rendition or from the signature of'judgment. The Code says from rendition, (article 593), and appellee argues that, the language of the Code being unambiguous, it must control. There is great force in the contention; but, on the other hand, by a jurisprudence founded on the articles of the Code, and now too firmly settled to be shaken, a judgment is not appealable until signed (State v. Bouchon, 20 La. Ann. 394; Thiele v. Crutcher, 20 La. Ann. 500; Trost v. Knox, 21 La. Ann. 261; Frantz v. Waggaman, 28 La. Ann. 26; Tietgans v. Succession of Kamper, 23 La. Ann. 219; State ex rel. v. Wharton, 25 La. Ann. 7; Succession of Millaudon, 23 La. Ann. 400; Nicholls v. Maddox, 52 La. Ann. 496, 26 South. 994), and it is not possible to hold that the legal delay for doing a thing begins to run before there is an opportunity to do the thing. This first ground must therefore be overruled.

The appeal was taken by petition, and the prayer was that it be made returnable according to law. The fixing of the return day at too early a date was therefore wholly the act of the judge. It follows that this second ground for dismissal is not well taken, since by express statute, Act No. 45, p. 101, Extra Sess. 1870, § 11, an appeal cannot he dismissed for any error or irregularity in the return day, or in the citation, unless the defect is imputable to the fault of the appellant.

But it is said that the fault rests upon the appellant, because its counsel wrote out the order, and the judge did no more than append his signature to it. The order was not the less the act of the judge because counsel wrote it out. A judgment is not the less the act of the court because counsel have written it out. So entirely and exclusively the act of the judge has this court held the order of appeal to be, that it has absolved the appellant from responsibility, even in a case where the erroneous return day was adopted from the prayer of the petition. Pearce v. State, 49 La. Ann. 643, 21 South. 737. It is not necessary to go that far in the present case in order to hold the second ground not to be well taken.

The motion to dismiss is overruled.