9 TEISS 121 - Hecker v. Bourdette

DUFOUR, J*

¶1A motion to_ dismiss this appeal is made on the ground that no petition was filed and no citation of appeal was ordered, issued or served herein.

¶2The judgments appealed from was respectively rendered on December 31, 1910 and June 22nd, of the same year.

¶3On June Í6th, 1911, á motion, was made for the appeal returnable to this Court June 26th with a prayer that 1 ‘ a copy of this rule be served on the plaintiff.”

*122November 20th, 1911.Rehearing refused December 4, 1911,I, Act 22 of 1904, respecting notice of pendency of the áctifert iff regard to immovable property and providing' for the registration of such notice, grants the right to record the notice to the plaintiff and not to the defendant.á, An inscription of such notice by defendant is without legal warrant and without legal effect and its cancellation may be demanded by plaintiff at any time.

¶4On June 2Óth, Í9Í1, another motion was made changing' the return day and an order was issued citing the plaintiff to appear in this Court on that stated day.

¶5So far as the appeal relates to the judgment of December 31st, 1910, rendered during the same term the motioh for appeal in open court is effective.

¶6But, there being no petition or formal citation or prayér for one, the appeal quoad the judgment of June .22ñd, 19Í0, rendered at á different term, cánnot he maintained.

¶7Service of a copy of a rule ashing for an appeal ,or of a motion subsequently fixing another return day is not a •legal substitute in such case for the citation required by the Code of Practice.

¶8The fault is imputable to the appellant’s failure to ash for citation.

¶9 39 An. 939; 42 An., 716; 109 La. 465.

¶10• It is therefore Ordered that the appeal from the judgment rendered December 31st, 19ld, be maintained and the appeal from the judgment rendered Juné 22nd 1910 be dismissed.