Opinion
No. 16626.
May 31, 1937.
Appeal from First City Court of New Orleans; W. Alex. Bahns, Judge.
Suit by the Home Finance Service against Carroll B. Walmsley. From a judgment dismissing the suit, plaintiff appeals. On motion to dismiss the appeal.
Motion denied.
Joseph A. Casey, of New Orleans, for appellant.
T.S. Walmsley, of New Orleans, for appellee.
Plaintiff, in the First city court of New Orleans, sued defendant on a promissory note claiming a balance of more than $100 and from a judgment dismissing the suit has appealed to this court.
Appellee moves to dismiss the appeal on the ground "that no notice of appeal has ever been served on either the defendant or Attorney for defendant, notwithstanding the presence of defendant in the City of New Orleans."
The amount involved is more than $100, and therefore, since the appeal was taken by motion in open court and at the same term of court at which the judgment was rendered, no citation of appeal was necessary.
In Richardson v. Caloavello, 3 La.App. 535, we said: "In the present case, the motion for appeal appears to have been made one week subsequent to the judgment which was `read, rendered and signed in open Court.' Considering these facts and the recent statute just noted, it follows that the appeal herein taken by motion in open court, without citation, and in accordance with Arts. 573 and 574, C.P., was, in all respect, regular."
In Ratcliff v. Industrial Life Ins. Co., 163 So. 428, 429, we again said: "If the appeal was granted on motion in open court, as we must assume that it was under the authorities above set forth, there was no necessity that a citation issue or be served."
In Swain v. Globe Lumber Company, 144 La. 207, 80 So. 256, 257, the Supreme Court said: "The appeal having been granted in open court, no further citation was necessary."
The motion to dismiss the appeal is denied.
Motion to dismiss denied.