Fidelity & Casualty Co. of New York v. Callicott

ELLIS, Judge.'

The plaintiff filed this suit in which it is seeking to recover an alleged unpaid balance on an insurance premium. Defendant filed exception or no cause and no right of action which was argued and submitted to the lower court on March 21, .1955, and on that day sustained. Immediately counsel for plaintiff moved for and was granted a devolutive appeal returnable to this court on April 6, 1955 conditioned upon plaintiff furnishing bond with good and solvent surety in the sum of $500. (This amount is evidently in error as the bond which was finally furnished was in the amount of $50 which would be sufficient to secure the costs.)

Counsel for defendant-appellee did not file a formal motion to dismiss this appeal but in his brief calls the attention of the court to the fact that no formal judgment was signed until the 9th day of May, 1955, and therefore, as reflected by the court minutes, the appeal herein was taken from an unsigned judgment, and counsel therefore suggests that the appeal should be1 dismissed by this Court ex proprio motu. Perrodin v. Tillson, La.App., 52 So.2d 306.

The record herein clearly shows that counsel secured an order of devolutive appeal immediately after the judgment sustaining the exception herein, and no judgment was read or signed until the 9th day of May, 1955 and the bond was given and filed on the 13th of May, 1955, subsequent to the return day of April 6, 1955 as shown by the minutes.

An appeal taken before signing of a judgment is premature and must be dismissed ex proprio motu. Perrodin v. Tillson, supra; Hanks v. Alexander, La.App., 154 So. 374; Poole v. Home Insurance Co., La.App., 71 So.2d 416; Greene v. Baynard, 194 La. 409, 193 So. 690; Succession of Savoie, 195 La. 433, 196 So. 923; Code Prac. Art. 546; State ex rel. Dixon v. Judge, 26 La.Ann. 119; Saloy v. Collins, 30 La.Ann. 63; Hauch v. E. C. Drew Co., 116 La. 488, 40 So. 847; Mitchell v. Shreveport Creosoting Co., 123 La. 957, 958, 49 So. 655; James v. St. Charles Hotel Co., 145 La. 1004, 1007, 83 So. 222; Nicholls v. Maddox, 52 La.Ann. 496, 497, 26 So. 994; James v. St. Charles Hotel Co., 145 La. 1004, 1007, 83 So. 222.

For the reasons given the appeal herein is hereby dismissed at the cost of the plaintiff-appellant.