Opinion
No. 274.
February 28, 1961.
Partition case. The Civil District Court for the Parish of Orleans, No. 366,364, Division "C", Louis H. Yarrut, J., entered judgment. Defendant appealed. Plaintiff moved to dismiss appeal. The Court of Appeal, Samuel, J., held that appeal should be dismissed for lack of citation and service.
Appeal dismissed.
Sam Monk Zelden, New Orleans, for defendant-appellant.
Charles E. Cabibi, New Orleans, for plaintiff-appellee.
Before McBRIDE, HALL and SAMUEL, JJ.
This is an appeal from a judgment declaring certain property paraphernal and other property community, and ordering a partition by licitation of the latter. The judgment was rendered and signed in open court on March 9, 1960. On August 12, 1960, which was during the vacation term of the court, the defendant filed a motion for a devolutive appeal which was signed on the same day by the district judge. Citation of appeal was neither prayed for nor issued and the record does not reflect that such citation was waived. Plaintiff-appellee now moves for the dismissal of the appeal because of the lack of citation and service.
As provided in Section 7 thereof, Act 15 of 1960 (Louisiana Code of Civil Procedure) became effective on January 1, 1961. Section 4(B) (2), to be found at page 748 of 1 LSA-C.C.P., states that none of the provisions of the act shall
"(b) Affect the validity or change the legal effect of any judicial, official, or procedural act done or attempted, or of any failure to act, prior to the effective date of this act in any civil action or proceeding, including but not limited to any: * * * appeal taken or requested; * * *."
We are therefore governed by the pertinent provisions of the Code of Practice and the jurisprudence thereunder.
[2, 3] The jurisprudence is well settled to the effect that citation of the appellee is essential to the appeal unless waived, or unless the motion or petition is presented in open court during the same term at which the judgment was rendered. When the appeal is applied for after the close of the term at which the judgment was rendered and the appellant does not pray for or otherwise request issuance and service of citation and no such service is made, the appeal must be dismissed. Code of Practice Art. 573; Royal Furniture Co. of Baton Rouge v. Patterson, La. App., 101 So.2d 495; Resweber v. Jacob, 229 La. 355, 86 So.2d 64; Louisiana State Board of Medical Examiners v. Parker, La. App., 84 So.2d 841; Officer v. American Ins. Co., 182 La. 1054, 162 So. 771; Jacobsen v. McGarry, 178 La. 79, 150 So. 838.
In the instant case the motion was filed and the order of appeal was signed after the close of the term at which the judgment was rendered. The appeal must be dismissed.
For the reasons assigned the appeal is dismissed at appellant's cost.
Motion maintained.