Simonton v. Mitchel

Citations

• 113 La. 921
• 37 So. 877
• 1905 La. LEXIS 796

Syllabus

<p>APPEAL — TIME OP TAKING — NOTIFICATION—MOTION TO DISMISS — COBBEOTION—JURISDICTION OF COURT OF APPEAL.</p> <p>1. Where a cause was tried in the First city court of New Orleans on March 16, 1903, in the presence of the parties, and was taken under advisement, and judgment was rendered therein on March 19, 1903, there being nothing in the judgment or on the docket to show that the losing party or his attorney was present on the last occasion, the delay for appeal commences to run from the date of the notification of the judgment.</p> <p>2. Where in such case the losing party took his appeal to the- Court of Appeal within 10 days after notification of judgment, such appeal was in time.</p> <p>3. Where an exception and motion to dismiss such appeal was filed on the grounds of want of citation of appeal and the lapse of more than 10 days since notification of judgment, and the court ordered that the cause be “remanded for correction,” and thereupon the appellant caused the constable to correct an error as to date of service of notice of judgment, and the judge of the city court to issue a citation of appeal, and the Court of Appeal reconsidered the case, and dismissed the appeal because not taken within 10 days from the signing of the judgment, held, that the order to “remand for correction” was in the nature of a certiorari to complete the record, and did not divest the jurisdiction of the Court of Appeal; that the appellant was -not responsible for the failure of the city judge to issue citation of appeal; that the correction of error in the date of service of notice of judgment was proper; and that the Court of Appeal erred in dismissing the appeal.</p> <p>(Syllabus by the Court.)</p>