White v. Maison Blanche Co.

76 So. 708, 142 La. 265, 1917 La. LEXIS 1666

• Court: Supreme Court of Louisiana
• Decided: October 29, 1917
• Docket: Nos. 22062, 22650
• Status: Published

Opinions

On Motion to Dismiss Appeal.

LECHE, J.

The Maison Blanche Realty Company, one of the defendants in the above matter, moves to dismiss the appeal taken by plaintiff, on the grounds: (1) That it was only cited to answer the appeal, on May 28, 1917, although judgment was rendered May 4, 1916, and the order of appeal was signed May 3, 1917; and (2) that the bond of appeal is not attested and sworn to as required by the provisions of Act 112 of 1916.

[1] (1) Plaintiff's appeal was perfected on May 3,1917, within the year. It then became the duty of the clerk of court to issue citation of appeal (C. P. art. 581), and the mere fact that citation issued and was served after the delays for an appeal had expired is not of itself cause for dismissing the appeal (Haggerty v. Annison, 133 La. 338, 62 South. 946).

[2] (2) Under section 9 of Act 112 of 1916, no appeal shall be dismissed for any inaccuracy or omission in the bond until the party furnishing such bond shall have failed to correct such inaccuracy or omission, which, under section 3 of the same a.ct, he shall have the right to do within two days from service upon him of notice by the adverse party. It is not pretended that appellant was given any notice by appellee of insufficiency of the bond either in form or amount.

Believing, for these reasons, that the motion to dismiss is neither supported by the facts in the record nor by the law of the case, it is overruled.