Rennyson v. Davis

6 Teiss. 251, 1909 La. App. LEXIS 82

• Court: Louisiana Court of Appeal
• Decided: March 22, 1909
• Docket: No. 4668
• Status: Published

Opinions

MOORE, J.

The appellee moves to dismiss this appeal because the bond was not filed within ten days as required by law.

The judgment appealed from was signed on the 18th day of November, 1908.

The motion for appeal and the bond were filed on the 1st day of December, 1908.

Excluding two Sundays, which intervened, November the 30th would be the tenth day.

Art. 318 C. P. provides that * * * “in all cases where delay is given either to do something or to answer, neither the day of serving the notices, nor that on which the act is to be done or the answer filed, are included.”

This rule has been applicable to the delays for taking an appeal, and that, therefore, in computing the time “within ten days,” when the appeal must be taken, the day on which judgment was signed and the day on which the appeal is taken, should not be included.

Thus, in Garland vs. Holmes, 12 R. 421, it appears that the judgment had been signed on the 20th of December, 1855, and the appeal was taken only on the 2d of January following, making an interval of thirteen days, but after excluding two Sundays, and ruling that the day on which the judgment had been signed, and that on which the appeal had been taken should not be included, the Court held the appeal had been taken within ten days after the judgment had been signed.

This case was followed in State ex rel. Mercier vs. Judge, 29 A. 224, and again in Turpery vs. Edmondson Ibid. 850. In State ex rel. Solari vs. Judge, 40 A. 793, the Court referred to these decisionst and said that:

“'Without expressing our opinion on the subject, if the question was res nova, we conclude that the decisions above referred to, in the .construction therein adopted of the application of Art. 318 of the Code, to expressions precisely similar in Art. 575, have acquired the force of the rule slave decisis and that they must control our ruling in the present controversy, ’ ’ which was one concerning the construction of Section 2093, Rev. Stat., .providing that ‘all appeals from judgments of the justices of the peace returnable, to the Third District Court, shall be made icitJiin ten days after the bond shall be filed in the office of the -said Justice of the Peace.’”

A contract of lease entered into by a married woman during the existence of the community, and in which contract the husband intervenes to authorize his wife, enures to the benefit of the community, and for the obligations of the contract the husband as head of the community, may be made to respond. January 25, 1909. March 22, 1909.

The bond under the authority of these decisions was timely filed in the instant cause, and therefore the motion to dismiss 'is denied.