Gardiner v. Erskine ( 1929 )

On Motion to Dismiss Appeal. This is an appeal by plaintiff from a judgment sustaining a plea to the jurisdiction of the court ratione personæ filed by two of the defendants. Appellees move to dismiss the appeal alleging that it was not applied for and granted in their presence in open court; that the motion for the appeal does not ask for citation of the appellees, nor were they cited; and that the failure of the appellant to ask that appellees be cited, and to have them served with citations, is fatal to their appeal.

The allegations of the motion to dismiss are not borne out by the record. The judgment appealed from was rendered and signed in the court below on March 8, 1929. The appeal was granted on the written motion of the appellant on March 18, 1929. The minutes of the court for that day show the following entry in the case, viz.:

"It is ordered that a devolutive and suspensive appeal be granted to the said Mary Alice Gardiner, returnable to the Supreme Court of the State of Louisiana, on the 6th day of May, 1929, upon mover furnishing bond, with good and solvent surety in the sum of Two Hundred ($200.00) Dollars."

While the minutes do not recite that the motion for the appeal was made in open court, they do show that the appeal was granted in open court. The presumption is, therefore, that the motion itself was made in open court. Swain v. Lumber Co., 144 La. 207, 80 So. 256; Washburn v. Frank, 31 La. Ann. 427; Gaidry v. Lyons, 29 La. Ann. 4. And the appeal having been granted in open court no citation of the appellees was necessary. Succession of Williams, 156 La. 704, 101 So. 113; James v. Hotel Co.,145 La. 1004, 83 So. 222; Swain v. Lumber Co., 144 La. 207, 80 So. 256; Fredrick v. Marx Picture Frame Co., 127 La. 149, 53 So. 474; Guy v. McDuffie, 123 La. 641, 49 So. 222; Glain v. Sparandeo,119 La. 339, 44 So. 120; Randolph v. Sentilles, 110 La. 419, 34 So. 587. We know of no law, and have been referred to none, that requires an appeal to be taken in the presence of the appellee.

Appellees cite, in support of their motion to dismiss, the cases of Ducre v. Succession of Ducre, 167 La. 133, 118 So. 864 and Palmisano v. Bonner, 167 La. 1014, 120 So. 630. There is no analogy between the cited cases and the one at bar. In the first of the cited cases the record showed that the appeal was applied for and granted in chambers and not in open court. In the second of the cited cases the record showed that while the appeal was moved for and granted in open court, this was done at a term different from the term in which the judgment appealed from was rendered.

For the reasons assigned, the motion to dismiss the appeal herein is denied.

On the Merits.