Peyton v. City of New Orleans

58 So. 852, 130 La. 986, 1911 La. LEXIS 448

• Court: Supreme Court of Louisiana
• Decided: October 16, 1911
• Docket: No. 19,007
• Status: Published

Opinions

On Motion to Dismiss Appeal.

MONROE, J.

[1] Plaintiff brought suit against the city of New Orleans for damages for personal injuries sustained by him whilst discharging the duties of switchman on the Public Belt Railroad, and, having obtained judgment for $10,000, now moves to dismiss the appeal taken therefrom on the ground that defendant did not apply for the appeal and is not before the court as an appellant, and that the party who moved for the appeal is without interest. The motion and order of appeal read, in part, as follows:

“On motion of John J. Reilly, assistant city attorney, and oc suggesting to the court that mover is aggrieved by the judgment hereint rendered, * * * that said judgment is contrary to the law and the evidence, and that mover desires to appeal * * * therefrom.. * * * it is ordered that a devolutive and suspensive appeal be granted to the defendant, the city of New Orleans. * * * "

It thus appears that the appeal was granted to “the defendant, the city of New Orleans,” upon the application made in his-official capacity of the assistant city attorney.

The case therefore falls within the rulings made in the cases of Kraeutler v. Bank, 12 Rob. 458, and Ansley v. Stewart, 123 La. 335, 48 South. 953, rather than in that made in Voelkel v. Aurich, 118 La. 529, 43 South. 151, in which latter, the appeal was both applied for by, and granted to, the mover, the attorney. The motion to dismiss is accordingly overruled.