Gardiner v. Erskine
Gardiner v. Erskine, 127 So. 604 (La. 1929).
Cited by
- Walker v. Associated Press 162 So. 2d 437 La. Ct. App. 4th Cir. 1964
- McInnis v. Terry 121 So. 2d 329 La. Ct. App. 1st Cir. 1960
- Kahn v. Urania Lumber Company 103 So. 2d 476 La. Ct. App. 2d Cir. 1958
- Lewis v. Travelers Indemnity Company 81 So. 2d 178 La. Ct. App. 2d Cir. 1955
- Florida Molasses Co. v. Berger 55 So. 2d 771 La. 1951
- Florida Molasses Co. v. Berger 55 So. 2d 771 La. 1951
- Doll v. R. P. Farnsworth & Co. 49 So. 2d 354 La. Ct. App. 1st Cir. 1950
- Perez v. Carbrey 22 So. 2d 76 La. Ct. App. 1st Cir. 1945
- Labarre v. Rateau 14 So. 2d 642 La. 1943
- Labarre v. Rateau 14 So. 2d 642 La. 1943
- McCann v. Todd 10 So. 2d 769 La. 1942
- Tate v. Dupuis 195 So. 810 La. Ct. App. 1st Cir. 1940
Authorities cited
Identified automatically; this list may not be exhaustive.
- Swain v. Globe Lumber Co. 144 La. 207
- 31 La. Ann. 427 not in our corpus
- Gaidry v. Lyons 29 La. Ann. 4
- Succession of Williams 156 La. 704
- James v. St. Charles Hotel Co. 145 La. 1004
- Frederick v. A. Marx Picture Frame Co. 127 La. 149
- Guy v. McDuffie 123 La. 641
- Glain v. Sparandeo 119 La. 339
- Randolph v. Sentilles 110 La. 419
- Ducre v. Succession of Ducre 167 La. 133
- Palmisano & Palmisano v. Bonner 167 La. 1014
Opinion text
On Motion to Dismiss Appeal. ROGERS, J. . This is an appeal by plaintiff from a judgment sustaining a plea to the jurisdiction of ■the court .ratione personae filed by two of the defendants.. Appellees move to dismiss the appeal alleging that it was not applied for and granted in their presence in open court? that the motion for the appeal does not ask for citation of the appellees, nor were they cited; and that the failure of the appellant to ask that appellees be cited, and to have them served with citations, is fatal to their appeal. - The allégations of the motion to dismiss aré not borne out- by- the- record. The judgment appealed from was rendered and signed in the court below on March 8, T929. The appeal was granted on the written motion of the appellant on March Í8,1929. The minutes of the court for that day show the following entry in the case, viz.: • ’ • ‘ “It is ordered1 that a devolutive and suspensive appeal be-granted to the -said1 Mary Alice Gardiner, returnable to the Supreme Court of the State of Louisiana, on the 6th day of May, 1929, upon mover furnishing bond, with good and solvent surety in the sum of Two Hundred ($200.00) Dollars.” While the minutes do not.recite, that the motion for the appeal was made in open court, they do show that the appeal was granted in open court... The presumption is, therefore, that the motion -itself was made in. open court. Swain v. Lumber Co., 144 La. 207 , 80 So. 256 ; Washburn v. Frank, 31 La. Ann. 427 ; Gaidry v. Lyons, 29 La. Ann. 4 . And the appeal having been granted in open court no citation of the :appellees was' necessary. Succession of Williams, 156 La. 704 , 101 So. 113 ; James v. Hotel Co., 145 La. 1004 , 83 So. 222 ; Swain v. Lumber Co., 144 La. 207 , 80 So. 256 ; Fredrick v. Marx Picture Frame Co., 127 La. 149 , 53 So. 474 ; Guy v. McDuffie, 123 La. 641 , 49 So. 222 ; Glain v. Sparandeo, 119 La. 339 , 44 So. 120 ; *216 Randolph v. Sentilles, 110 La. 419 , 34 So. 587 . We know of no la.w, and have been referred to none, that requires an appeal to be taken in the presence of the appellee. Appellees cite, in support of their motion to dismiss, the cases of Ducre v. Succession of Ducre, 167 La. 133 , 118 So. 864 and Palmisano v. Bonner, 167 La. 1014 , 120 So. 630 . There is no analogy between the cited cases and the one at bar. In the first of the cited cases the record showed that the appeal was applied for and granted in chambers and not in open court. In the second of the cited eases the record showed that while the appeal was moved for and granted in open court, this was done at a term different from the term in which the judgment appealed from was rendered. For the reasons assigned, the motion to dismiss the appeal herein is denied.