Succession of Williams
Succession of Williams, 101 So. 113 (La. 1923).
Cited by
- Vidrine v. American Employers Ins. Co. 129 So. 2d 284 La. Ct. App. 3d Cir. 1961
- Mongrue v. Lancaster 106 So. 2d 448 La. 1958
- Rouyer v. Horil 79 So. 2d 106 La. Ct. App. 1st Cir. 1955
- Peiser v. Grand Isle, Inc. 69 So. 2d 51 La. 1953
- Geo. L. Ducros Tile Co. v. Frey Homes, Inc. 54 So. 2d 354 La. Ct. App. 4th Cir. 1951
- Succession of Singer 23 So. 2d 184 La. 1945
- Louisiana Power Light Co. v. Mosley 18 So. 2d 210 La. Ct. App. 2d Cir. 1944
- Succession of Weil 17 So. 2d 255 La. 1944
- Labarre v. Rateau 14 So. 2d 642 La. 1943
- Labarre v. Rateau 14 So. 2d 642 La. 1943
- Hollingsworth v. Caldwell 192 So. 83 La. 1939
- Succession of Roque 146 So. 477 La. 1933
Authorities cited
Identified automatically; this list may not be exhaustive.
- Levert v. Berthelot 127 La. 1004
- Connelly v. Southern Pac. Co. 140 La. 120
- Grevemberg v. Roane 133 La. 679
Opinion text
DAWKINS, J. Appellee has moved to dismiss this appeal upon the grounds, first, that appellant did not apply for a new trial in the lower court, and, second, “that no citation of appeal was issued or served therein.” The first ground is without merit, for it is settled that a party cast does not have to apply for a new trial to entitle him to the right of appeal. Levert v. Berthelot, 127 La. 1004 , 54 South. 329 ; Connelly v. So. Pac. Co., 140 La. 120 , 72 South. 829 ; Grevemberg v. Roane, 133 La. 679 , 63 South. 280 . As to the second point, there is nothing in ■ the minutes or otherwise to show that the motion for appeal Was made or filed In open court. It is in' the form peculiar to practice in this city by which the proposed appellants recite that “on motion,” suggesting that they are aggrieved by the judgment of the lower court,- “it is ordered by the court” that the appeal be granted, which motion and order is signed by the judge at its *707 conclusion, with the notation “New Orleans, La., May 24, 1923.” Of course, if the motion was made in open court, “at the same term,” under express provision of the Code of Practice (article 573) no petition and citation of appeal was necessary. However, if this was not done, then there was not only no citation of appeal, but no prayer therefor, and hence we would not be justified in remanding the ease for citation, but would be compelled to dismiss the appeal. As the record stands, there is nothing left to us but to dismiss the appeal; but, if on application for rehearing, a proper showing is made of the ability of defendant to establish, by correction of the minutes or otherwise, that the motion for appeal was properly taken in open court, then we might, in the interest of justice, entertain a motion to that end. For the reasons assigned the appeal is dismissed, with cost.