Officer v. American Ins. Co. , 182 La. 1054 ( 1935 )

The defendant, appellee, has moved to dismiss this appeal because the appellee was not served with a citation to appear in the appellate court. The appeal was taken by motion in open court, but during a term subsequent to the term in which the judgment was rendered and signed. A citation to answer the appeal was not asked for by the appellant, or issued by the clerk of court.

The only instance in which a citation is not essential to the validity of an appeal is when the appeal is taken by motion in open court during the same term in which the judgment is rendered. Code of Practice, arts. 573, 574, 581-583. Under authority of section 1907 of the Revised Statutes, an appellate court will not dismiss an appeal for want of citation to answer the appeal, but will grant further time for service of a citation upon the appellee, if the failure to cite the appellee was due to negligence on the part of an officer of the court. Hiller v. Barrow, 144 La. 282, 80 So. 538; Taylor v. Allen, 151 La. 82, 91 So. 635; Toca v. Rojas, 152 La. 317, 93 So. 108. But the clerk of court is not obliged to issue a citation to the appellee when an appeal is taken by motion in open court, unless the appellant asks for service of citation upon the appellee. When an appeal has been taken by motion in open court, during a term subsequent to the term in which the judgment was rendered, and no citation to appear in the appellate court was asked for or issued, a motion to dismiss the appeal must prevail. De St. Romes v. Macarty, 21 La. Ann. 277; Wheeler Pierson v. Peterkin, 38 La. Ann. 663; Smith v. O'Reilly Elevator Co.,134 La. 635, 64 So. 494; King v. First Methodist Church, 137 La. 879, 69 So. 593; State v. Salmen Brick Lumber Co., 149 La. 968, 90 So. 273; Palmisano Palmisano v. Bonner, 167 La. 1014,120 So. 630; Bass v. Lane, 169 La. 681, 125 So. 853; Jacobsen v. McGarry,178 La. 79, 150 So. 838.

Act No. 234 of 1932, providing against the dismissal of an appeal because of an informality or irregularity in bringing up the record, or for some technical error, does not save an appeal from dismissal for want of citation, if the appeal was taken by motion in open court during a term subsequent to the term in which the judgment was rendered and no citation was asked for or issued. Jacobsen v. McGarry, 178 La. 79, 150 So. 838.

The appeal is dismissed.