Francis v. Martin , 28 La. Ann. 403 ( 1876 )

ON Motion to Dismiss.

Moegan, J.

Appellee moves to dismiss this appeal on the grounds—

First — That a suspensive, appeal was illegally granted.

Second — Because the appeal was not applied for within the delays allowed by law.

Third — Because the application for an appeal was granted after the expiration of more than ten days after the adjournment of the court by which the judgment was rendered.

The first ground need not be noticed, as the alleged illegality of the application and order of appeal are contained in the second and third grounds.

The second and third grounds may be considered together.

The judgment appealed from is one rendered upon confirmation of a default.

The judgment was rendered on the twentieth of November, 1874, and was signed the same day, that being the last day of court.

Notice of judgment was issued on the first of December following, and was served on the seventh.

Application for an appeal was made on the tenth of December, three days after the notice of judgment was served.

This was within the delays granted by the law. Taylor vs. Woodward, 25 An. 212. Riley vs. Howell, lately decided.

Counsel for appellee contends that his case is governed by the proviso appended to article 575, O. P., which says that “ in the country parishes no execution shall issue in eases where an appeal lies, until ten days after the adjournment of the court by which the judgment was rendered, within which delay a party may take a suspensive appeal on filing petition and appeal bond, as now provided by law.” But the whole of the article relied on must be taken together. Now, one part of the article declares that “ whenever an answer has been filed in a suit in which the defendant has had personal service made upon him to appear and file his answer, or when a'judgment has been rendered in a ease after answer filed by the defendant, or by his counsel, the party cast in the suit shall be considered duly notified of the judgment by the fact of its being signed by the judge,” and this precedes the proviso relied upon. From the whole of the article it is, we think, apparent that the ten days commence to run from the day the judgment has been notified to the party cast.

It is urged upon us that the article in question should read “ whenever no answer has been filod,” etc., instead of “ whenever an answer has been filed,” but we see no reason for thus changing the whole force of the article.

It is also pressed upon us that the case of Lazarre vs. Snow, 1 R., p. 60, is authority for supporting the position that “ the period after the lapse of which no appeal will lie is to be computed from the day when the judgment was signed, not from that on which it was notified to the party against whom it was given.” The decision quoted does decide in that way, and it would probably control us were the law now what it. was when that case was decided. But the law has been changed. This decision was rendered in 1841. The statute changing the law was passed in 1843.

The motion to dismiss is refused.