6 LA 111 - Plauche v. Marigny

Mathews, J.,

¶1delivered the opinion of the court.

¶2This case was brought before the court on a motion to dismiss the appeal. It is expressed in the following terms. “ On motion, &c., it is ordered that the plaintiffs and appellants show cause, &c., why this appeal should not be dismissed, there being no statement of facts, and not having been returned on the return day.”

¶3In the course of argument the counsel for the appellee offered as an additional reason, why the appeal should not be dismissed, the want of citation after the appeal to the proper term of the Appellate Court. This mode of argument is objected to by the appellants, as inadmissible, insisting that the> mover should not be permitted to avail himself of any means to dismiss, except those contained in his motion. We are, however, of a different opinion. When a motion is made to dismiss an appeal, it is not required of the mover to state any reasons for the purpose of obtaining an order on his adversary to show cause. He would consequently be at liberty to show any legal causes of dismissal, ore terms, on the trial of the rule, and it seems to us to follow, as a corollary, that if all reasons to dismiss may be offered on the discussion of the rule, without having been expressed in it, the circumstance of some having been thus expressed, cannot lawfully preclude the adduction of others.

¶4The article of the Code of Practice, 583, relied on by the appellee’s counsel, to show the fatal effect of the want of citation to the proper term of the Appellate Court, has in several instances received our interpretation and the text of law itself, as well as the decisions of the court, all favor his pretentions.

¶5In the present instance, the petition of appeal was filed in May last, and the order of the court below made it returnable to the first Monday in June term, of the Appellate Court. To appear on that day, the appellee ought to have been cited, if there was time sufficient after the rendition of the judgment in the District Court, in pursuance of the delay allowed by law, if not to the first day of the next succeeding term. The record affords no evidence, pro or con, as to the *115sufficiency .of time to make the appeal returnable to the term of the Supreme Court, immediately succeeding the sighing of the judgment in the court below; but as it was made thus returnable, the fair presumption is, that the time was sufficient. Being of opinion, that on this ground alone the appeal must be dismissed, we forbear to examine any other point in the cause.

The sickness of the judge a quo, cannot excuse the want of citation in duo time, it being a writ in the ordinary course of judicial proceedings, requiring no special order of the judge.Conrad, and Potts, for plaintiffs and appellants,Hennenf contra.

A rehearing was prayed for by the appellants, on the ground that the want of citation for which the appeal was dismissed, had not been stated among the causes for dismissal filed, and that the appellants were prepared to prove that the service of the citation of appeal had been expressly waived by the appellee in person. The rehearing was granted.

The appellants relied on the following affidavits which they offered in evidence.

John L. Lewis, the clerk of the court in which the cause was tried, made affidavit “ that B. Marigny, the defendant in the above entitled suit, appeared at this affiant’s office a short time after the appeal in this case was taken, and before the return day to the Supreme Court, for the purpose of urging this affiant in making out the transcript of the record in this case for appeal, and that at the same time the said Marigny expressly waived the formality of citation, alleging wish to bring the said appeal before the Supreme Court, as expeditiously as possible, and promising not to take any advantage which might result from the non-compliance with said formality on the part of this affiant; and further, this affiant deposes that the reasons above stated, are the only cause why the citation of appeal in the above case was not issued, and does not appear upon the record.”

¶6 *115The circumstance of the sickness of the judge a quo, as detailed in the affidavit of Mr. Farrie, cannot excuse the want of citation in due time, being a writ in the ordinary course of judicial proceedings, requiring no special order of the judge. See in support of this opinion, 3 La. Reports 440, 460 and 250. 4 ditto p. 180. and Code of Practice 583.

¶7It is, therefore, ordered, adjudged and decreed, that this appeal be dismissed at the costs of the appellants.

Hugh Farrie, the deputy clerk, made affidavit, “that after the judgment in the above entitled cause, was rendered against the plaintiffs, they presented the petition of appeal which is found in the trañscript of the record of said suit; that said appeal was allowed, and affiant caused a transcript of the record to be made out in said suit; that said transcript is the one now on file in the Supreme Court, and is a true and correct one, and contains all the evidence adduced by either of the parties on the trial, as well as of all documents filed in said suit, and introduced on the trial thereof, except certain material records, which the counsel for the parties agreed should not be inserted in the record, but should be taken up to the Supreme Court, separately, either in the originals or certified copies. That before said transcript was completed, and before the day fixed by the order of the judge for the return of the appeal, Joshua Lewis, late judge of said court, fell sick and never held court after the seventh day of May, 1833, and departed this life on or about the fifth day of June ensuing,”

Conrad and Potts, for plaintiffs and appellants.Hennen, contra.

1. The appellee complied with the agreement, as related by Lewis. Service of the appeal being accepted by his counsel, 19th November, 1833, as appears from the record.

2. The first appeal was abandoned, by taking a secón d from judge Watts, on the 20th November, 1833. 4 Miller's Reports, 41 Doner vs. Sergeant. Code of Practice, art. 594.

3. No bond having been given on the second appeal, the appeal must be dismissed.

The citation of the appellee cannot be proved, as a matter in pais, it must appear as a matter of record. or at least must be established by the written acknowledgment of the party,

4. The first appeal was not returned on the return day, the appeal should therefore be dismissed. 3 La. Reports, 250, Bell vs. Williams. Idem. 440, Bains vs. Higgins.

Martin, J.,

¶8delivered the opinion of the court.

¶9We granted a rehearing on this case to the plaintiffs, on their exhibiting an affidavit of the clerk of the District Court, who stated he had forborne issuing a citation, the defendant and appellee having told him it was unnecessary, and the service of the citation would be acknowledged. This was not admitted by the defendant, and it appears some misunderstanding has taken place.

¶10We are of opinion, that so important a part of the proceedings in an appeal, as the citation of the appellee, cannot be proved as a matter in pais, but must appear as a matter of record, or at least must be established by the written acknowledgment of the party.

¶11Our former opinion must, therefore, remain undisturbed, as the judgment of the court in the present case.