Thibodaux v. Falcon

Plaintiff instituted this suit to recover the sum of $522.35 which he claims is the balance due him by defendant on a bill rendered for services rendered by him as superintendent of construction of certain apartments which the defendant was having erected in the City of Baton Rouge. Issue was joined by the defendant's answer to the plaintiff's petition and after trial of the case on the merits, judgment was rendered in the district court against the plaintiff rejecting his demand and dismissing his suit at his costs.

The judgment was rendered in the district court on July 14, 1939 and was read and signed in open court on July 17, 1939. As appears from the extract of the minute entries filed in the record, it was not until Monday, October 4, 1939, that the plaintiff, on oral motion made by his counsel in open court, obtained an order of devolutive appeal returnable to this court on October 24, 1939, upon his furnishing bond in the amount fixed by the Court. A bond was furnished in due time and the appeal was lodged in this court on the return date fixed in the order. Defendant, appellee, moves for a dismissal of the appeal on the ground that it was taken at a term of the district court subsequent to that at which judgment was rendered and signed without citation of appeal.

Appellee has supplied the record with a certificate signed by one of the presiding judges of the district court from which the case emanated, which shows that the terms of that court begin with the first Monday of October of each year and end on the 31st day of July in the year following. It is apparent therefore that the appeal was taken at a term subsequent to that during which the judgment was rendered and signed, and, as it was obtained on oral motion only, and without citation, it is not a valid appeal and the motion to dismiss must prevail. Officer et al. v. American Insurance Company, 182 La. 1054, 162 So. 771; Hornsby v. Texas New Orleans Railway Company, La.App., 193 So. 377.

It is therefore ordered that the motion herein be sustained and the appeal is hereby dismissed at the costs of the appellant.