Bascle v. Perez

• Decision Date: 15 February 1954
• Docket Number: Nos. 41185,41186,s. 41185
• Citation: 71 So.2d 551,224 La. 1014
• Parties: BASCLE et al. v. PEREZ et al.
• Court: Louisiana Supreme Court

Page 551

71 So.2d 551

224 La. 1014

BASCLE et al. v. PEREZ et al.

Nos. 41185, 41186.

Supreme Court of Louisiana.

Feb. 15, 1954.

Rehearing Denied March 22, 1954.

Dodd, Hirsch & Barker, John P. Nelson, Jr., New Orleans, for plaintiffs-appellants.

Richard A. Dowling and James R. Pertuit, New Orleans, for defendants-appellees.

HAWTHORNE, Justice.

Plaintiffs Harold L. Bascle and Donald Bascle instituted this suit seeking to recover from defendants Horace R. Perez and Peter A. Rauch in quantum meruit for services rendered and performed by them in the repairing, renovating, and remodelling of a building in which Perez was to operate a cocktail lounge. Plaintiff Harold L. Bascle alleged that he worked for a period of 39 weeks, for which he should receive compensation at the rate of $100 per week, or a total of $3900. Plaintiff Donald Bascle alleged that he worked 16 weeks, for which he should receive compensation of $70 per week, or a total of $1120. Defendants denied the allegations of plaintiffs' petition, and after trial on the merits there was judgment in the lower court against Horace R. Perez in favor of Harold L. Bascle in the sum of $1950, representing 39 weeks at $50 per week, and in favor of Donald Bascle in the sum of $800, representing 16 weeks at $50 per week. Plaintiffs' suit as against Peter A. Rauch was dismissed. Plaintiffs have appealed to this court, praying that the judgment rejecting their demands against Rauch be reversed, and that the amount awarded to each be increased to the amount prayed for against both defendants. The defendant Perez has also appealed seeking a reversal of the judgment against him.

Although there was only one suit filed by these plaintiffs and only one judgment rendered in the court below, two separate appeals were filed in this court, one by plaintiffs-appellants, No. 41,185 on our docket, and one by the defendant Perez, No. 41,186. These appeals were consolidated in this court, as both were from the same judgment rendered in the lower court.

In this court defendant-appellee Peter A. Rauch has filed a motion to dismiss plaintiffs' appeal based on the following facts:

The judgment in this case was rendered in the lower court on January 13, 1953. On February 4 plaintiffs Harold and Donald Bascle obtained an order of appeal returnable on February 25 to the Court of Appeal for the Parish of Orleans, conditioned upon their furnishing bond. Citations to answer this appeal returnable to the Court of Appeal were served on defendants Perez and Rauch, but the appeal bond to perfect this appeal was never given by plaintiffs. On February 20 plaintiffs filed what they styled a supplemental and amended motion in the lower court praying for an appeal to the Supreme Court. Pursuant to this motion an order was granted making the appeal returnable to this court on February 25, upon plaintiffs' furnishing bond in the sum of $250. In this motion plaintiffs-appellants never prayed that defendants-appellees be cited to answer the appeal, and consequently they were not cited to answer the appeal to this court.

On February 24 plaintiffs filed a motion praying for an extension of time in which to file the transcript in this court. Attached to this motion is an affidavit of the deputy clerk of the lower court in which he swore that the transcript had not been completed because the appeal has been erroneously applied for returnable to the Court of Appeal instead of to the Supreme Court. This court thereupon signed an order extending the return day for filing the transcript to March 26. On March 25 a motion for a further extension of time was filed, and this court signed an order extending the return day to April 23. On April 13 the appeal bond was filed in the lower court, and the transcript of appeal was lodged in this court on April 20.

In appellee Peter A. Rauch's motion to dismiss, filed on January 15, 1954, he urges three grounds for dismissal of plaintiffs' appeal as to him: (1) Failure to serve the motion of appeal upon appellee Rauch and to cite him to appear and answer the appeal in this court; (2) failure of the appellants to file their appeal bond timely, and (3) failure of the appellants to file their transcript of record timely.

Defendant-appellee Rauch's motion to dismiss is well founded, and appellants' appeal as to him will have to be dismissed because they did not pray in their motion for appeal to this court for service of citation of appeal upon appellee, and appellee was not cited. This omission, which was entirely appellants' fault, was a substantive defect and not merely a technical one, and is ground for the dismissal of the appeal. McCutchen v. Hudson, 132 La. 177, 61 So. 157; State v. Salmen Brick & Lumber Co., 149 La. 968, 90 So. 273; Investors' Mortgage Co., Inc., v. Aleman, 165 La. 104, 115 So. 383; Ducre v. Succession of Ducre, 167 La. 133, 118 So. 864; Naquin v. Naquin, 170 La. 621, 128 So. 655.

Appellants contend that citation of Rauch was unnecessary under Article 574 of the Code of Practice because their motion for the appeal to this court was made in open court. This rule does not apply here. The article of the Code of Practice in providing that citation is not necessary in the event the order of appeal is granted in open court did not contemplate such a case as this, where an appellant changes the court for the return of his appeal and obtains two orders to different courts for the same appeal. Since the appellee by the citation under the first order of appeal had actual knowledge that an order of appeal had been obtained to the Court of Appeal, it would be unreasonable to charge him with legal or constructive knowledge of the second order obtained to the Supreme Court. The appellee had the right to rely on the citation and service which was made upon him informing him that the appellants had appealed to the Court of Appeal. In Hymel v. Illinois Cent. R. Co., 116 La. 42, 40 So. 525, the syllabus by the court reads: 'If, after obtaining an order of appeal on motion in open court, an appellant obtains a second order of appeal on motion, the appellee must be cited under the second order.' Appellee should therefore have been cited under the second order of appeal made returnable to this court.

Appellants also argue that service of citation of the appeal to this court was waived by the appellee Rauch's making an appearance in this court and urging other grounds for dismissal of the appeal as to him. Since appellee Rauch urged want of citation as his first ground for dismissing the appeal, he did not waive citation of appeal although he thereafter urged additional reasons, because none of these, that is, failure of the appellants to file the appeal bond and their transcript of record timely, pertains to the merits of the appeal. Schmitt v. Drouet & Rabasse, 42 La.Ann. 716, 7 So. 746; Colbert and Snider v. Alphonse Brenner Co., Inc., 8 La.App. 605. In Richardson v. Louisiana Ry. & Nav. Co., 153 La. 803, 96 So. 662, 664, this court said:

'* * * In such appeals [appeals to the Supreme Court], if the appellee has other grounds to urge, but which at least are those that must be urged within three days after the filing of the transcript, or else be considered as abandoned, the appellee is permitted to embody in his motion to dismiss for want of citation such other grounds, provided he urges as the first the failure to cite him. Were it otherwise, under the rules of practice applicable in this court, the appellee would be forced to abandon his exception, based on the want of citation, or his remaining grounds for dismissal, since, if he excepted to the citation before availing himself of those grounds, the time would expire within which to urge them, before the objection to the citation could be disposed of, and the law contemplates that he should be permitted to urge all grounds. * * * Hence the general rule that an appearance for any other purpose than to except, because of the absence of citation, cures the defect, necessarily admits of an exception in appeals to this court, but even in such appeals, when the appellee moves first to dismiss on any other ground, and then makes a similar motion, based on the want of citation, the defect caused by a failure to cite him is cured. Hefner v. Hesse, 26 La.Ann. 148. * * *' (Italics ours.)

Even if appellee had waived service of citation of appeal by urging other grounds in his motion to dismiss, the appeal would nevertheless have to be dismissed as to him for appellants' failure to file the transcript timely.

The order of the lower court made the appeal returnable to this court on or before February 25, 1953, and plaintiffs' first motion seeking an extension of time in which to file the transcript discloses by the affidavit of the deputy clerk of the lower court attached thereto that the transcript had not been filed in this court because 'the appeal was erroneously applied for, returnable to the Court of Appeal for the Parish of Orleans, whereas the jurisdiction is in the Supreme Court'. Under Article 883 of the Code of Practice this court may grant an extension in which to file the record in this court if appellant was prevented from filing it by some event not under his control. In the motion in this case the reason given by appellants for failure to file the transcript on or before the return day fixed in the order of the lower court shows that the failure was entirely their fault and was not due to an event not under their control. Consequently our order extending the return day was granted improvidently and without authority of law. This irregularity under the jurisprudence of this court is cause for dismissal of the appeal provided the motion to dismiss is filed within the three legal days after the return day allowed for answering the appeal. Thibodeaux v. Cayard, 52 La.Ann. 1374, 27 So. 737; Rex Realty Co., Inc., v. Howard's D. G. S., Inc., 186 La. 867, 173 So. 513; D'Angelo v. Nicolosi, 188 La....