Scales v. State
Also decided on this docket: La. Ct. App. 1st Cir., May 9, 1977 346 So. 2d 823; La. Ct. App. 1st Cir., November 18, 1969 229 So. 2d 137; La. Ct. App. 4th Cir., March 9, 1982 411 So. 2d 658
Scales v. State, 391 So. 2d 871 (La. Ct. App. 1st Cir. 1980).
Cited by
- Roger D. Phipps v. Cynthia Nelson Schupp and Roland Lawrence Cutrer, Jr. La. Ct. App. 4th Cir. 2020
- Joseph v. Wasserman 194 So. 3d 720 La. Ct. App. 1st Cir. 2016
- Muller v. Giacona 404 So. 2d 533 La. Ct. App. 1st Cir. 1981
- Desandro v. Shoemacher 400 So. 2d 1208 La. Ct. App. 1st Cir. 1981
- Traigle v. Gulf Coast Aluminum Corp. 399 So. 2d 183 La. 1981
- First National Bank of Commerce v. Bernard 398 So. 2d 1293 La. Ct. App. 1st Cir. 1981
- Scales v. State 396 So. 2d 909 La. 1981
Authorities cited
Identified automatically; this list may not be exhaustive.
- Succession of Rolland 360 So. 2d 213
- State ex rel. John T. Moore Planting Co. v. Howell 139 La. 336
- Barbara, Inc. v. Billelo 212 La. 937
- Salassi v. Salassi 220 La. 785
- Priestly v. Chapman 130 La. 480
- Brand v. Jones 15 La. 449
- Thomas v. Berman 308 So. 2d 797
Opinion text
REDMANN, Judge, concurring. The result in Succession of Rolland, La.App. 4 Cir. 1975, 360 So.2d 213 , was correct because the “appellant” had no right of appeal because she herself petitioned for the exact judgment the trial court rendered. See C.C.P. 2085; State ex rel. Moore Planting Co. v. Howell, 1916, 139 La. 336 , 71 So. 529 ; Barbara Inc. v. Billelo, *873 1947, 212 La. 937 , 33 So.2d 689 ; Salassi v. Salassi, 1952, 220 La. 785 , 57 So.2d 684 . See also cases holding consent judgment not appealable, such as Priestly v. Chapman, 1912, 130 La. 480 , 58 So. 156 ; Lallande v. Jones, 1859, 14 La.Ann. 714 ; Brand v. Jones, 1840, 15 La. 449 ; Barnwell v. Harman, 1819, 6 Mart. 723 . The result in Thomas v. Berman, La.App. 4 Cir. 1975, 308 So.2d 797 , was also correct under the law at that time because failure to file bond timely deprived the court of appeal of “jurisdiction.” Bond is no longer required, and Thomas does not control. C.C.P. 2121 does provide that “[a]n appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.” The correct interpretation, however, must be that only a timely filing of the motion for appeal is essential to prevent the judgment’s becoming definitive. Otherwise, a hardheaded judge could defeat an appeal by simply refusing to sign an order of appeal even when ordered to do so by the Supreme Court-which could not itself grant an order “from the court which rendered the judgment,” in the words of C.C.P. 2121. Obviously C.C.P. 2121 is simply providing a road-map, which tells the lawyer where to go to take an appeal, and if the trial judge recal-citrantly refused to sign the order an appellate court could grant the order and could grant it after the time for applying for an order had passed. C.C.P. 5051 obliges a liberal construction of procedural rules, which it declares “are not an end in themselves.” As long as an appellant files a proper motion with a proper order, the appellant is entitled to have the trial judge sign the order as a matter of right, and if the judge does not do so it should in equity be considered as done anyway.