No. 4081 Precedential Processed

Fidelity & Casualty Co. of New York v. Callicott

Louisiana Court of Appeal, First Circuit · Filed November 22, 1955 · 83 So. 2d 671

Also decided on this docket: La. Ct. App. 1st Cir., August 3, 1970 238 So. 2d 398; La. Ct. App. 1st Cir., December 9, 1931 137 So. 908; La. Ct. App. 3d Cir., January 29, 1973 272 So. 2d 792

Cited by

Richards v. Gettys 329 So. 2d 475 La. Ct. App. 4th Cir. 1976
Nomey v. State, Department of Highways 325 So. 2d 732 La. Ct. App. 2d Cir. 1976
Malbrough v. Kiff 312 So. 2d 915 La. Ct. App. 1st Cir. 1975
Forman v. May 201 So. 2d 683 La. Ct. App. 3d Cir. 1967
Doucet v. Landry 137 So. 2d 431 La. Ct. App. 1st Cir. 1962
Hooter v. Farrar 113 So. 2d 94 La. Ct. App. 1st Cir. 1959
Fidelity & Casualty Co. of New York v. Callicott 96 So. 2d 920 La. Ct. App. 1st Cir. 1957
Fidelity & Casualty Co. of New York v. Callicott 88 So. 2d 724 La. Ct. App. 1st Cir. 1956
Frazier v. Muse 88 So. 2d 729 La. Ct. App. 1st Cir. 1956

Authorities cited

Identified automatically; this list may not be exhaustive.

Perrodin v. Tillson 52 So. 2d 306
Hanks v. Alexander 154 So. 374
Poole v. Home Ins. Co. 71 So. 2d 416
Greene v. Baynard 194 La. 409
Succession of Savoie 195 La. 433
Hauch v. E. C. Drew Inv. Co. 116 La. 488
State ex rel. Broussard v. Dallas 40 So. 847
Mitchell v. Shreveport Creosoting Co. 123 La. 957
Smith v. Huie-Hodge Lumber Co. 49 So. 655
James v. St. Charles Hotel Co. 145 La. 1004
26 So. 994 not in our corpus

Opinion text

ELLIS, Judge.' The plaintiff filed this suit in which it is seeking to recover an alleged unpaid balance on an insurance premium. Defendant filed exception or no cause and no right of action which was argued and submitted to the lower court on March 21, .1955, and on that day sustained. Immediately counsel for plaintiff moved for and was granted a devolutive appeal returnable to this court on April 6, 1955 conditioned upon plaintiff furnishing bond with good and solvent surety in the sum of $500. (This amount is evidently in error as the bond which was finally furnished was in the amount of $50 which would be sufficient to secure the costs.) Counsel for defendant-appellee did not file a formal motion to dismiss this appeal but in his brief calls the attention of the court to the fact that no formal judgment was signed until the 9th day of May, 1955, and therefore, as reflected by the court minutes, the appeal herein was taken from an unsigned judgment, and counsel therefore suggests that the appeal should be1 dismissed by this Court ex proprio motu. Perrodin v. Tillson, La.App., 52 So.2d 306 . The record herein clearly shows that counsel secured an order of devolutive appeal immediately after the judgment sustaining the exception herein, and no judgment was read or signed until the 9th day of May, 1955 and the bond was given and filed on the 13th of May, 1955, subsequent to the return day of April 6, 1955 as shown by the minutes. An appeal taken before signing of a judgment is premature and must be dis *672 missed ex proprio motu. Perrodin v. Tillson, supra; Hanks v. Alexander, La.App., 154 So. 374 ; Poole v. Home Insurance Co., La.App., 71 So.2d 416 ; Greene v. Baynard, 194 La. 409 , 193 So. 690 ; Succession of Savoie, 195 La. 433 , 196 So. 923 ; Code Prac. Art. 546; State ex rel. Dixon v. Judge, 26 La.Ann. 119 ; Saloy v. Collins, 30 La.Ann. 63 ; Hauch v. E. C. Drew Co., 116 La. 488 , 40 So. 847 ; Mitchell v. Shreveport Creosoting Co., 123 La. 957, 958 , 49 So. 655 ; James v. St. Charles Hotel Co., 145 La. 1004, 1007 , 83 So. 222 ; Nicholls v. Maddox, 52 La.Ann. 496, 497 , 26 So. 994 ; James v. St. Charles Hotel Co., 145 La. 1004, 1007 , 83 So. 222 . For the reasons given the appeal herein is hereby dismissed at the cost of the plaintiff-appellant.