Palmisano & Palmisano v. Bonner

Supreme Court of Louisiana

Palmisano & Palmisano v. Bonner

120 So. 630, 167 La. 1014, 1929 La. LEXIS 1722

CourtSupreme Court of Louisiana

DecidedJanuary 28, 1929

DocketNo. 29653.

StatusPublished

Cited by7 cases

This text of 120 So. 630 (Palmisano & Palmisano v. Bonner) 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

Palmisano & Palmisano v. Bonner, 120 So. 630, 167 La. 1014, 1929 La. LEXIS 1722 (La. 1929).

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Opinion

*1015 LAND, J.

Plaintiff’s suit was dismissed by judgment rendered in the lower court May-27, 1927, and signed in open court June 6, 1927, maintaining an exception'of no cause of action, filed May 9, 1927, by defendant the United States Fidelity & Guaranty Company.

Under section 1 of Rule IY of the civil district court, the term of court begins October 15th of each calendar year, and is opened for the transaction of all business until its adjournment July 31st following.

On June 1, 1928, at a subsequent term of the civil district court, plaintiff filed a motion for a devolutive appeal from this judgment, which was granted on the same day, and < made returnable to this court on July 20, 1928.

It appears from this motion that no citation was prayed for, or was ordered in the order granting the appeal, nor was any citation issued, as far as the record discloses.

Under this state of facts, the motion to dismiss must prevail. “The omission of appellant to ask for citation of appeal and to have it served on appellee, when the order of appeal has been granted on motion in open court at a term different from that on which the judgment was rendered, is fatal to the appeal which must be dismissed.” Wheeler & Pierson v. G. A. Peterkin et al., 38 La. Ann. 663; Smith v. O’Reilly Elevator Co., 134 La. 635, 64 So. 494; King et al. v. First Methodist Church, 137 La. 879, 69 So. 593.

As stated in Smith v. O’Reilly Elevator Case, above cited: “It is well settled that, when an appeal is taken at a subsequent term, the appellee must be cited. McGaw v. O’Bierne, 124 La. 989, 50 So. 819; Gagneaux v. Desonier, 109 La. 460, 33 So. 561; Wheeler & Pierson v. Peterkin et al., 38 La. Ann. 663; Trouston [Trounstine] & Co. v. Ware & Munn, 39 La. Ann. 939, 3 So. 122.”

It is therefore ordered that the motion be maintained, and that the appeal be dismissed.

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*1015 LAND, J.

Plaintiff’s suit was dismissed by judgment rendered in the lower court May-27, 1927, and signed in open court June 6, 1927, maintaining an exception'of no cause of action, filed May 9, 1927, by defendant the United States Fidelity & Guaranty Company.

Under section 1 of Rule IY of the civil district court, the term of court begins October 15th of each calendar year, and is opened for the transaction of all business until its adjournment July 31st following.

On June 1, 1928, at a subsequent term of the civil district court, plaintiff filed a motion for a devolutive appeal from this judgment, which was granted on the same day, and < made returnable to this court on July 20, 1928.

It appears from this motion that no citation was prayed for, or was ordered in the order granting the appeal, nor was any citation issued, as far as the record discloses.

Under this state of facts, the motion to dismiss must prevail. “The omission of appellant to ask for citation of appeal and to have it served on appellee, when the order of appeal has been granted on motion in open court at a term different from that on which the judgment was rendered, is fatal to the appeal which must be dismissed.” Wheeler & Pierson v. G. A. Peterkin et al., 38 La. Ann. 663; Smith v. O’Reilly Elevator Co., 134 La. 635, 64 So. 494; King et al. v. First Methodist Church, 137 La. 879, 69 So. 593.

As stated in Smith v. O’Reilly Elevator Case, above cited: “It is well settled that, when an appeal is taken at a subsequent term, the appellee must be cited. McGaw v. O’Bierne, 124 La. 989, 50 So. 819; Gagneaux v. Desonier, 109 La. 460, 33 So. 561; Wheeler & Pierson v. Peterkin et al., 38 La. Ann. 663; Trouston [Trounstine] & Co. v. Ware & Munn, 39 La. Ann. 939, 3 So. 122.”

It is therefore ordered that the motion be maintained, and that the appeal be dismissed.

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120 So. 630, 167 La. 1014, 1929 La. LEXIS 1722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palmisano-palmisano-v-bonner-la-1929.

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