Harnischfeger Corp. v. C.W. Greeson Co.

Decision Date29 June 1951
Docket NumberNo. 39500,39500
CourtLouisiana Supreme Court

Bullock & Bullock, Shreveport, for defendants-appellants.

Thomas M. Hayes, Jr., Theus, Grisham, Davis & Leigh, Monroe, for plaintiff-appellee.

PONDER, Justice.

The plaintiff brought suit against the defendants seeking to recover the sum of $2,372.13, alleged to be due for machine parts and services rendered to the defendants. The defendants denied the correctness of the account and reconvened asking for judgment in the amount of $12,566.62 as damages for alleged breach of contract. After various exceptions had been interposed, the defendants dismissed the reconventional demand as of non-suit and filed a separate demand for the alleged damages under the provisions of Article 377 of the Code of Practice. Service of this demand was contested by the attorneys of the non-resident plaintiff. The defendant then sued out an attachment and caused to be seized the rights and interest of the plaintiff in plaintiff's suit against the defendants. On trial of the plaintiff's demand, the lower court gave judgment in favor of the plaintiff and the defendants appealed. Thereafter, the lower court sustained a plea of the jurisdiction ratione personae to the defendants' demand and dismissed the defendants' attachment on a plea of prescription. The defendants appealed from both judgments.

The plaintiff has moved to dismiss the defendants' appeal from the judgment awarding the plaintiff $2,372.13 on the ground that the defendants acquiesced in the validity and integrity of the judgment by seizing the plaintiff's interest therein. The plaintiff, appellee, relies on Sections 3864-3868 of Title 13 of the Louisiana Revised Statutes of 1950, LSA-RS, and the cases of Buntin v. Johnson, 27 La.Ann. 625 and Ratcliff v. Levin, 173 La. 931, 139 So. 10. We have examined these authorities and find that they are not applicable.

An appeal is a constitutional right and any doubt as to the right of an appeal must be resolved in favor of the appeal. The pertinent provisions of Article 567 of the Code of Practice reads as follows: 'The party against whom judgment has been rendered can not appeal: * * * if he have acquiesced in the same, by executing it voluntarily. * * *' In interpreting this provision of this article of the Code of Practice, this court has on numerous occasions stated that an appeal will not be denied unless the acquiescence in...

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8 cases
  • Powers v. City of Richmond
    • United States
    • California Supreme Court
    • May 8, 1995
    ... ... Fremont Cemetery Corp. (1992) 9 Cal.App.4th 1221, 1226, 11 Cal.Rptr.2d 780; In re Taya C ... of the state Constitution] (italics in original); Harnischfeger Corp. v. C.W. Greeson Co. et al. (1951) 219 La. 546, 53 So.2d 488, 489 ... ...
  • Tennessee Gas Transmission Co. v. Violet Trapping Co.
    • United States
    • Louisiana Supreme Court
    • January 18, 1965
    ...of Damico, 161 La. 725, 109 So. 402; State v. Standard Oil Co. of Louisiana, 188 La. 978, 178 So. 601 and Harnischfeger Corp. v. C. W. Greeson Co., 219 La. 546, 53 So.2d 488) provided that the appeal is taken to the court having jurisdiction of the case. On the other hand, due process of la......
  • State Through Dept. of Highways v. Holmes
    • United States
    • Louisiana Supreme Court
    • December 11, 1967
    ... ... Blue Ribbon Ice Cream & Milk Corp., 231 Ind. 436, 109 N.E.2d 88 (1952) ...         The majority, by ... of Louisiana, 188 La. 978, 178 So. 601; and Harnischfeger Corp. v. C. W. Greeson Co., 219 La. 546, 53 So.2d 488. On the other hand, ... ...
  • DeFrances Marble & Tile Co. v. Coxe
    • United States
    • Court of Appeal of Louisiana — District of US
    • November 9, 1962
    ... ... 295, 3 So.2d 626; Jackson v. Michie, 33 La.Ann. 723; Harnischfeger Corp. v. C. W. Greeson Co., 219 La. 546, 53 So.2d 488; Scott v. Scott, 218 ... ...
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