Vascocu v. Woodward

35 La. Ann. 555

• Court: Supreme Court of Louisiana
• Decided: April 15, 1883
• Docket: No. 8756
• Status: Published

Opinions

The opinion of the Court was delivered by

Manning, J.

The plaintiff instituted two spits against the defendant, one to recover damages for an alleged illegal sale of the property of the succession, of which both were administrators, for the nullity of that sale, and the destitution of the defendant of his office, in which suit the property sold was sequestered—the other to prevent the sale of the property of the succession which was then advertised, alleging the previous suit for destitution, etc., and injoining that sale. These suits were numbered 418 and 483 respectively on the docket of the lower court. They were consolidated, tried, and judgment rendered therein. No appeal has been taken from that judgment.

Two other judgments were drafted by the counsel for the party cast, and presented to tlie Judge for signature, one for each case. He signed the judgment adapted to No. 483, and granted an appeal from it, and the bond was executed. The defendant excepted to this action of the court in signing that judgment on the ground that a judgment had already been rendered and signed, and the court could do nothing more than grant an appeal from it.

But he refused to sign the other paper, prepared for suit No. 418, having come to the conclusion that his power was exhausted, and to this the plaintiff excepted, and incorporated the form of the judgment he had drafted in his bill.

The defendant moves to dismiss the appeal.

It is obvious the judgment in the consolidated cases is not before us for review. No appeal was taken from it—none was asked.

It is equally obvious there is no appeal in the suit No. 418. No judgment was rendered in that suit, separate from the consolidated suits. None was signed, (and under our system judgments in civil suits must be signed) and no proceedings were taken to compel the Judge to sign it, if his refusal was wrongful. As to that case, there is nothing before us but an exception to the Judge’s refusal, and if we should consider it well taken, we cannot order him to sign the judgment in this proceeding, and even if we should order him to sign it, that would have to be done in the future, and we cannot consider it done nuncpro tunc.

There is then no appeal before us but that taken from the judgment signed in and for suit No. 483, and the motion to dismiss cannot be granted. To dismiss the appeal would leave that judgment intact, and as apparently existing.