Gagneaux v. Desonier

Citations

• 109 La. 460
• 33 So. 561
• 1901 La. LEXIS 579

Syllabus

<p>APPEAL — CITATION—FAILURE OF CLERK TO ISSUE — DISMISSAL—INTERLOCUTORY JUDGMENT — REHEARING.</p> <p>1. Where an order of appeal is taken in open court, but at a term subsequent to that at which the judgment was rendered,' it is necessary to formally cite the appellee.</p> <p>2. Where citation of appeal is asked, appellant cannot be prejudiced by the failure of the clerk to issue the same unless it affirmatively appear that the omission is attributable to the appellant.</p> <p>3. Where the clerk certifies he was informed hy appellant’s counsel it was not necessary to issue citation of appeal, and the counsel files affidavit contesting this statement, the matter is left in doubt and the appeal will not be dismissed.</p> <p>4. It is the duty of clerks of court to issue citations of appeal when prayed for, and they should in no case omit this duty unless instructed in writing by appellant or his counsel to omit it.</p> <p>On Second Motion'to Dismiss.</p> <p>5. A judgment of this court denying a motion to dismiss an appeal for want of citation and granting a specified time in which to cite the appellee, is interlocutory in character'.</p> <p>6. The rules of this court allow of application for rehearing only where the judgment rendered disposes finally of the cause. This being so, an interlocutory decree becomes effective from the day of its rendition. No delay for rehearing purposes postpones the maturity or finality of the judgment.</p> <p>7. Time allowed an appellant by this court in which to perfect his appeal by citing the appellee is equivalent to an extension of time in which to file his appeal, and all papers and proceedings necessary to effect and protect the appeal should have been filed here on or before the last day of the time granted.</p> <p>8. It is requisite that a citation of _ appeal name the court into which the appellee is cited.</p> <p>(Syllabus by the Court.)</p>