Sullivan v. Tremont & Gulf Railway Co. ( 1925 )

CARVER, J.

The record in this case does not contain any order of appeal or even petition or motion for such order.

Although no motion has been made to dismiss the appeal, on the authority of Gagneaux vs. Desonier, 104 La. 648, 29 South. 282, we feel constrained regretfully to dismiss the appeal on our own motion.

In that case the record showed that the appellant requested the court to fix the amount of the appeal bond and that the court did fix it, but because it did not show the grafting of an order of a formal order, the court dismissed the appeal.

It is true that a motion in that case was made to dismiss, being made, though, more than three days after the return day. The court states that appellant, in support of his contention that such an objection came too late after three days, cited the following cases, namely:

Murray vs. Bacon, 7 N. S. 271.

Temple vs. Marshal, 11 La. Ann. 613.

Kohn vs. Davidson, 23 La. Ann. 467.

Francis vs. Lavine, 26 La. Ann. 312.

Holbrook vs. Holbrook, 32 La. Ann. 14.

Hall vs. Nevill, 32 La. Ann. 326.

Succession of Chamburg, 34 La. Ann. 25.

Webb vs. Keller, 39 La. Ann. 55, 1 South. 423.

Long vs. Key, 44 La. Ann. 309, 10 South. 854.

State vs. Callac, 45 La. Ann. 27, 12 South. 119.

Naghten vs. Naghten, 48 La. Ann. 769, 19 South. 762.

Mutual Life Ins. Co. vs. Houchins, 52 La. Ann. 1139, 27 South. 657.

The court stated that to the above might be added:

O’Reilly vs. McLeod, 2 La. Ann. 138.

Walker vs. Sauvinet, 27 La. Ann. 314.

The court then says:

“We have examined the decisions referred to by appellant. Most of them declare that the defects in orders of appeal, or in bonds of appeal, which if not objected to within three days, are to be abandoned or waived, are irregularities in orders of appeal actually granted or in bonds actually furnished. They do not declare that objections that ‘no order’ of appeal was granted, or that no bond was furnished, have to be made within three days, and if not so made will be considered abandoned or waived. Murray vs. Bacon, 7 N. S. 271; O’Reilly vs. McLeod, 2 La. Ann. 138; Temple vs. Marshall, 11 La. Ann. 613; Walker vs. Sauvinet, 27 La. Ann. 314; State vs. Callac, 45 La. Ann. 27, 12 South. 119, and Webb vs. Keller, 39 La. Ann. 55, 1 South. 423, are, however, cases where expressions to that effect will be found. These cases all refer to Murray vs. Bacon as the original authority for such a declaration. All that the court said in that case was that ‘the appellee had moved to dismiss the appeal for an irregularity in the manner of bringing it up. That this motion came too late. The Code of Practice excluded all the answers except those which pray for a confirmation of a judgment if not put in within three days after the record was filed in the Supreme Court.’

"It will be noted that the court does not state what the objection was which was made, and that it refers to it as directed at an ‘irregularity in the manner of bringing the appeal up’. It does not' pretend to exclude objections of a jurisdictional character which it would be the right or duty of the court to notice ex officio and to dismiss the appeal of its own motion.”

The court then proceeds to discuss many of the cases cited, after which it says:

“We are of the opinion that the granting by the lower court of an order of appeal is a jurisdictional fact, and that the absence of such an order should be noticed ex officio by the appellate court and acted upon of its own motion. The failure of the appellee to urge the objection, even if it had the effect of estopping him from filing a formal ‘motion to dismiss’ as appellant contends it does, would not preclude him from suggesting or bringing the matter to the knowledge of the court. Upon coming to such knowledge, it would be the duty of the court to dismiss the appeal of its own motion. If the decisions quoted by the appellant contain anything contrary to what we here declare to be the law, they must be considered to that extent overruled.”

The Gagneaux case has béen cited only twice by the Supreme Court, so far as we have found, namely: in the cases of Vallee vs. Hunsberry, 108 La. 136, 32 South. 359, and State vs. Simpson, 122 La. 301, 47 South. 622.

The Simpson case is not at all in point, there having been an order of appeal in that case.

In the Yallee case, the court says:

“The transcript in this case was filed in this court November 8, 1901; and upon February 21st of the present year, the defendant and appellee moved to dismiss the appeal upon the grounds: (1) That the transcript failed to show any order of appeal from the only final judgment ‘read and signed’; (2) that the district court had divested itself of jurisdiction by granting an appeal to this court; and, (3) that no notice of the appeal was served on the appellee, or his counsel.

“As to the first ground, the motion comes too late.” Webb vs. Keller, 39 La. Ann. 55, 1 South. 423.

We cannot think that the court intended, in this terse manner, to overrule the Gagneaux case, in which such an exhaustive examination of the authorities was made. Justice Monroe, the organ of the court in the Vallee case, was a member of the court which decided the Gagneaux case and the report shows no dissent on his part.

The appeal is, therefore, dismissed.