Allen v. Yantis

Full title: ALLEN et al. v. YANTIS

Court: Court of Appeal of Louisiana, First Circuit

Date published: Jun 6, 1939

190 So. 239 (La. Ct. App. 1939)

Opinion

No. 1997.

June 6, 1939.

Appeal from Fourteenth Judicial District Court, Parish of Calcasieu; John T. Hood, Judge.

Action by Etta Allen and another against Harold Yantis. From a judgment of dismissal, plaintiffs appeal devolutively.

Appeal dismissed.

Robt R. Stone, of Lake Charles, for appellants.

Plauche Stockwell, of Lake Charles, for appellee.

LE BLANC, Judge.

Judgment dismissing the plaintiff's suit on an exception of no cause of action as in case of non-suit was rendered and signed in the district court on March 10, 1938. On February 14, 1939, at a subsequent term of the district court plaintiff obtained an order for a devolutive appeal on oral motion made in open court. The suit having been filed under the benefit of the pauper act, no appeal bond was necessary and transcript of appeal was filed in this court in due time on March 9, 1939.

Defendant, appellee before this court, now moves for the dismissal of the appeal on the ground that the same was obtained at a term of court subsequent to that during which judgment was rendered and signed, on oral motion made in open court only and without petition and citation.

Plaintiff, appellant, urges no defense to the motion, her counsel stating in brief that he does not find any jurisprudence to the effect that an appeal taken as was the present is maintainable. He accordingly submits the matter to the court.

The law and jurisprudence both amply support the motion and it has to prevail. An appeal can only be taken by motion in open court and without citation to the appellee when such motion is made at the same term of court in which the judgment is rendered. Code of Practice, Arts. 573, 574, 581-583. "When an appeal has been taken by motion in open court, during a term subsequent to the term in which the judgment was rendered, and no citation to appear in the appellate court was asked for or issued, a motion to dismiss the appeal must prevail." See Officer et al. v. American Insurance Company, 182 La. 1054, 162 So. 771 and numerous cases therein cited.

Motion sustained and appeal dismissed.