Planters Securities Co. v. Richard

CUTRER, Judge.

MOTION TO DISMISS

An ex proprio motu order was issued herein directing appellant, Daniel Richard, to show cause why his appeal should not be dismissed. The appellant has not answered the order to show cause.

On January 23, 1978, Stelly Construction, Inc. instituted suit against defendant, Daniel Richard, seeking to recover the sum of $1,920.00 allegedly due under a contract in which Stelly agreed to clear defendant’s land.

On May 3, 1978, Planters Securities, Inc. filed suit against Daniel Richard and Stelly Construction, Inc. seeking damages sustained as a result of the defendant’s trespass on plaintiff’s land.

On motion of Daniel Richard, the two cases, presenting common issue of fact, were consolidated for trial.

Following a trial, on June 11, 1979, a judgment was rendered by the court in favor of Stelly Construction, Inc. and against Daniel Richard in the sum of $990.00. The judgment further ordered that costs in Stelly Construction, Inc. v. Daniel Richard (Number 7531) be divided equally between the parties. The judgment is silent as to the claim of Planters Securities against Daniel Richard and Stelly Construction, Inc.

On June 11, 1979, Daniel Richard filed a motion for new trial in the cause entitled Planters Securities Co., Inc. v. Daniel Richard, et al. (Number 7530). On June 25, 1979, the trial judge denied the motion for new trial. On July 20, 1979, Daniel Richard moved for an appeal in the cause entitled Planters Securities Co., Inc. v. Daniel Richard, et al. The trial judge entered an order of appeal granting Daniel Richard’s motion.

The issue which faces this court is whether Daniel Richard perfected a valid appeal from the judgment rendered in Stelly Construction, Inc. v. Daniel Richard.

The jurisprudence has held that unless a party obtains an order of appeal duly granted by the trial court, there can be no appeal. Davis v. Funderburk, 274 So.2d 781 (La.App. 3rd Cir. 1973).

An examination of the record reveals that although appellant did obtain an order of appeal in Planters Securities Co., Inc. v. Daniel Richard, et al., no order of appeal was granted by the court in Stelly Construction, Inc. v. Daniel Richard. Since no order of appeal was granted the purported appeal in Stelly Construction, Inc. v. Daniel Richard is dismissed.

We need not consider the appeal in Planters Securities Co., Inc. v. Daniel Richard, et al., because appellant has advised this court that the matter has been settled.

Accordingly, the motion to dismiss is made absolute and the appeal in Stelly Construction, Inc. v. Daniel Richard is dismissed.

APPEAL DISMISSED.