Durbridge v. State

Citations

• 117 La. 841
• 42 So. 337
• 1906 La. LEXIS 779

Syllabus

<p>1.Appeal — Time op Taking — Refusal of</p> <p>New Trial.</p> <p>Plaintiff’s suit against the state was brought under permission granted him by the General Assembly in Act No. 67 of 1898, under authority of article l92 of the Constitution. He appealed from an adverse judgment in the district court and died since the appeal was taken. Counsel for the state move to dismiss the appeal.</p> <p>On Motion to Dismiss the Appeal.</p> <p>2. Same — Motion to Dismiss.</p> <p>The date from which the year given for taking an appeal runs (when a motion for a new trial was filed within the time granted by articles 537, 538, of the Code of Practice, to make such motions) is from the day when the court refuses the new trial. The litigant should not be made to suffer from the court’s withholding its decision on the motion for a new trial. “Actus curias non gravabit.”</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1895.]</p> <p>3. States — Actions Against — Appeal — Death of Appellant — Effect.</p> <p>The death during the pendency of his appeal of a person to whom permission was given by the General Assembly to sue the state does not cause the suit to abate on the ground that the right given to the plaintiff to sue was intended by it to be personal. It can be continued to judgment on the representatives of the plaintiff making themselves parties, leaving to the Legislature itself to determine what its intentions were. The object of the Legislature was to be fully informed as to the claim subjected to investigation in order to guide its own future action on the claim. To dismiss the appeal would be to defeat the object sought; to permit the investigation to continue to final judgment would leave the future action of the General Assembly open to its own discretion.</p> <p>Technical rules should not be applied to a case of this character.</p> <p>On the Merits.</p> <p>4. Same — Burden of Proof.</p> <p>Article 192 of the Constitution makes it the duty