Swain v. Globe Lumber Co.

80 So. 256, 144 La. 207, 1915 La. LEXIS 2104

Opinions

On Motion to Dismiss Appeal.

PROVO STY, J.

[1] The minutes in this case read:

“Judgment read signed and filed, see decree. Motion for new trial filed and overruled, orders for appeal granted plaintiff returnable to the Honorable Supreme Court at New Orleans, La., on August 30, 1915. Devolutive appeal bond fixed in the sum of $200. Suspensive appeal bond fixed as by law directed.”

The minutes contain no recital of a motion for an appeal having been made in open court; and appellee moves to dismiss the appeal on the ground that the minutes must, under penalty of dismissal, show that a motion for an appeal was made.

In support of this, appellee cites the case of Friscoville Realty Co. v. Parish of St. Bernard, 124 La. 589, 50 South. 590, where a mandamus was asked of this court to compel the trial judge to grant an appeal which had not been applied for either by motion in open court or by petition, but over the telephone, and where this court refused the mandamus, because the proceedings in a court of record cannot be conducted by telephone.

We see no analogy between the two cases. In the present case the minutes show that the appeal was granted. This shows that it was applied for, since it would hardly have been granted if not applied for.

[2] Another ground of the motion to dismiss is that the warrantor was not cited. The appeal having been granted in open court, no further citation was necessary.

The motion to dismiss is denied.