Berg v. Horne

Judgment was signed in this case on March 14, 1945. Plaintiff, in open court, by oral motion, on March 9, 1946, moved for and was granted order of devolutive appeal to this court. This motion was made at a term of the District Court other than that at which the judgment was rendered and signed. The appeal was made returnable April 14th and was perfected by timely filing of bond on March 12th. The record reached this court and was filed on the return day.

[1] The motion to dismiss is based upon the fact that as the appeal was taken by oral motion in open court at a term other than that at which the judgment was rendered, the effort to appeal was abortive; that in such circumstances appeal may only be legally taken and perfected by petition and order of court thereon and service thereof on the appellees.

The motion is well founded for the reason assigned. Code of Practice, Article 573; Bass v. Lane et al., 169 La. 681,125 So. 853; Jacobsen v. McGarry, 178 La. 79, 150 So. 838; Pool v. Gaudin, 207 La. 403, 21 So. 2d 424.

[2] During oral argument it was admitted by counsel that on April 15th, the return day, appellant did file petition for appeal, praying for citation of appellees thereunder, and that on that date one of the appellees was duly served and notified of this effort to appeal. This petition and other papers in connection therewith are not in the record. Suffice it to say that this attempt to appeal was made more than one year subsequent to the signing of judgment herein and whatever else may be said of it, it came too late, the time limit for appealing having expired.

For the reasons herein given, this appeal is dismissed at appellant's cost.