Palmisano & Palmisano v. Bonner , 167 La. 1014 ( 1929 )

Plaintiff's suit was dismissed by judgment rendered in the lower court May 27, 1927, and signed in open court June 6, 1927, maintaining an exception of no cause of action, filed May 9, 1927, by defendant the United States Fidelity Guaranty Company.

Under section 1 of Rule IV of the civil district court, the term of court begins October 15th of each calendar year, and is opened for the transaction of all business until its adjournment July 31st following.

On June 1, 1928, at a subsequent term of the civil district court, plaintiff filed a motion for a devolutive appeal from this judgment, which was granted on the same day, and made returnable to this court on July 20, 1928.

It appears from this motion that no citation was prayed for, or was ordered in the order granting the appeal, nor was any citation issued, as far as the record discloses.

Under this state of facts, the motion to dismiss must prevail. "The omission of appellant to ask for citation of appeal and to have it served on appellee, when the order of appeal has been granted on motion in open court at a term different from that on which the judgment was rendered, is fatal to the appeal which must be dismissed." Wheeler Pierson v. G.A. Peterkin et al., 38 La. Ann. 663; Smith v. O'Reilly Elevator Co., 134 La. 635, 64 So. 494; King et al. v. First Methodist Church, 137 La. 879, 69 So. 593.

As stated in Smith v. O'Reilly Elevator Case, above cited: "It is well settled that, when an appeal is taken at a subsequent term, the appellee must be cited. McGaw v. O'Bierne, 124 La. 989, 50 So. 819; Gagneaux v. Desonier, 109 La. 460, 33 So. 561; Wheeler Pierson v. Peterkin et al., 38 La. Ann. 663; Trouston [Trounstine] Co. v. Ware Munn, 39 La. Ann. 939, 3 So. 122."

It is therefore ordered that the motion be maintained, and that the appeal be dismissed.