Sthele v. Millspaugh , 33 La. Ann. 194 ( 1881 )

On Motion to Dismiss.

The opinion of the Court was delivered by

Levy, J.

The appellee moves to dismiss this appeal, for the reason, “ that at the time of filing the transcript of appeal, to wit: on the 11th of September, 1877 (though the return day of said appeal was fixed for the 1st Monday of November, 1877), there was a rule pending in the Sower court for the dismissal of said appeal, which rule was on the-day of-, 1877, made absolute, and said appeal dismissed, from which judgment of dismissal no appeal has been taken, and that said cause is, therefore, improperly pending in this Court;” and appellee exhibits as part of this motion a duly certified copy of the judgment of ¡said lower court dismissing the appeal.

The transcript of appeal in this case was filed in this Court on the 11th of September, 1877; the judgment of the lower court was signed on June 27th, 1877; a motion for appeal was made, and order therefor granted on the 28th of June, and an appeal bond filed on July 25th, 1877 (within thirty days from the signing of judgment), within which time an appeal from judgments of divorce can be taken. The appeal was made returnable on the first Monday of November, 1877. A rule was •taken on the defendant, appellant, and served on the 4th of August, 1877, to show cause (for the reasons set forth) why the order of appeal ¡should not be set aside and the appeal dismissed; the trial of this rule was, by consent of counsel, on the 7th of August, 1877, continued to the ■2d of October. In the meantime, before the return day fixed, the appellant filed the transcript of appeal pending the rule mentioned, and the original transcript does not show what action was had by the lower •court.

It is true this Court has appellate jurisdiction only, and is confined tío a consideration of the matters of fact contained in the record. It be‘comes seized of jurisdiction when the appeal bond is given in con■formity with law, which continues until its final disposition of the case, -or until it becomes divested by operation of law, or by legal effect of proceedings had in the lower court, as provided in the Code of Practice. In such matter as acquiescence pleaded to have been given by the appellant, the Court would remand a case for ascertainment in the ■lower court of such fact, or of any other fact not shown in the record. “Here the pendency of a rule to set aside the order of appeal is patent in the record, and during the continuance of that rule, with consent of appellant, to a day agreed upon by her, and, before judgment'was rendered on the rule, the transcript was filed, and our jurisdiction attached.

The appellee files in this Court, with his motion to dismiss, a certi■fied copy of the judgment of the lower court, setting aside the appeal, from which judgment no appeal has been taken, and which, by lapse of time has become final, and is res adjudicata as to the parties. The appellant did not choose to appeal from this judgment, adverse to her, and ■the appellee could not appeal, because it granted him fully what he had ••sought and prayed for. The duly certified copy of the judgment shows •distinctly that the order was set aside by the lower court before the ■expiration of the time within which the appeal was returnable, and the -appeal dismissed. To remand the case, for the purpose of ascertaining •the fact that such judgment was rendered, would, to our minds, be supererogatory, and regarding this fact as being incontrovertibly established, we think this Court is, under the circumstances, properly ■divested of jurisdiction by a proceeding taken in due season in the lower court. The motion of appellee to dismiss is sustained, and it is -ordered that the appeal herein be dismissed.