DocketNumber: No. 24967.
Citation Numbers: 104 So. 388, 158 La. 616
Judges: LAND, J.
Filed Date: 4/27/1925
Status: Precedential
Modified Date: 1/12/2023
When the attorney for the defendant, appellee, was arguing his motion to dismiss this appeal, one of the members of the court reminded him of section 1907 of the Revised Statutes, which provides:
"No appeal to the Supreme Court shall be dismissed on account of any defect, error, or irregularity of the petition or order of appeal, * * * or in the citation of appeal or service thereof, * * * whenever it shall not appear that such defect, error or irregularity is imputed to the appellant; but in all cases the court shall grant a reasonable time to correct such errors or irregularities (in case they are not waived by the appellee)," etc.
Thereupon, the attorney for appellee declared that he did not desire another service of the citation of appeal, and that, if the court should find it to be the law that his client was not entitled to a dismissal of the appeal, but was entitled only to a new service of the citation of appeal, he would waive his objection to the place where the citation of appeal had been served upon his client, and that the court need not further consider his motion to dismiss, or decide whether he was entitled to another service of the citation of appeal. Surely, the defendant, appellee, would not be entitled to have this appeal dismissed if the service of the citation of appeal at Alexandria was not a valid service. Murphy v. Insurance Co., 33 La. Ann. 454; Borde v. Erskine, 33 La. Ann. 873; Succession of Townsend, 36 La. Ann. 447; Philips v. Her Creditors, 37 La. Ann. 701; Cockerham v. Bosley, 52 La. Ann. 67, 26 So. 814; Hiller v. Barrow,
Our reason for overruling this motion to dismiss the appeal ought to be that the law does not allow us to dismiss it; and we ought to say that our reason for not *Page 621 ordering a new service of citation of appeal is that the appellee has waived whatever right he might have had to another service of the citation of appeal — as section 1907 of the Revised Statutes suggests an appellee may and ought to do.
The opinion, which has been submitted to the consultation, dealing with this motion to dismiss the appeal as if it would be a good cause for a dismissal if the service of the citation of appeal was not good, is not consistent with the decisions which I have cited, or with section 1907 of the Revised Statutes, and may lead to confusion.