Horton v. Western Union Telegraph Co

• Decision Date: 13 January 1941
• Docket Number: 6249
• Citation: 200 So. 44
• Court: Court of Appeal of Louisiana — District of US
• Parties: HORTON ET UX. v. WESTERN UNION TELEGRAPH CO

200 So. 44

HORTON ET UX. v. WESTERN UNION TELEGRAPH CO

No. 6249

Court of Appeal of Louisiana, Second Circuit.

January 13, 1941

C. D Moss, of Winnfield, for appellants.

White Holloman & White, of Alexandria, for appellee.

OPINION

TALIAFERRO Judge.

Plaintiffs' son, John Lee Horton, a minor, according to the allegations of the petition, was thrown from the bicycle on which he was riding, after delivering a telegram for defendant, his employer, and was injured. The boy's face was bruised and cut, two teeth were knocked out and others loosened. The cuts and bruises, it is alleged, have resulted in permanent disfigurement. Plaintiffs, for the use and benefit of their son, sue for workmen's compensation for a period of four hundred (400) weeks. They allege that defendant is engaged in a hazardous business; that the son was serving defendant as a messenger boy, his duties being to call for, receive and deliver telegrams, cables, etc., in and around the town of Winnfield, Louisiana; that he was required by defendant to use a bicycle on the streets and highways in the discharging of his duties, and was necessarily forced to traverse said streets and highways when burdened with heavy motor vehicular traffic.

Defendant excepted to the petition as disclosing no right of action as to Mrs. Horton, for the reason that the right of action alleged upon, if any exists, rests solely in the father. The petition was excepted to as disclosing neither a cause nor a right of action, as to the father, on the ground that: "* * * there is no allegation that plaintiff's son was engaged in a hazardous employment incident to or in the course of the trade, business or occupation of the defendant, which trade, business or occupation was within itself hazardous under the Workmen's Compensation Law of Louisiana."

The exceptions were all sustained. The suit was dismissed. Plaintiffs appealed devolutively.

Motion to Dismiss Appeal.

Defendant moved to dismiss the appeal for the reason that prior to the perfection thereof, plaintiffs, on their own motion, were granted a devolutive appeal to this court which they abandoned by not perfecting prior to return day. In other words, that having been granted an order of devolutive appeal and not perfecting the appeal by the furnishing of required bond within legal delay, plaintiffs, thereby, for all time, lost, by abandonment, the right to appeal devolutively from the judgment. Art. 594 of the Code of Practice; Brickell et al. v. Conner et al., 10 La.Ann. 235; Jenkins v. Bonds, 3 La.Ann. 339, and Sterling v. Sterling's Heirs, 35 La.Ann. 840, are relied upon to sustain this position.

The cited article of the Code of Practice, in part, reads: "From the moment when the citation of appeal is served on the appellee, the appellant can not withdraw his appeal, * * *".

It is contended by appellee that since the first order of appeal was moved for and granted in open court, this was the equivalent to citation of appeal and that thereafter the appellants were without right to withdraw the appeal directly, or indirectly by abandoning the same through failure to timely give the required bond.

Appellee concedes that if plaintiffs had originally procured orders of appeal, suspensive and devolutive, and had not perfected either appeal, they could, within one year from the date of judgment, appeal devolutively; and that had they originally appealed suspensively and failed to perfect the appeal, this failure would not bar them from thereafter appealing devolutively.

It is well settled by recent adjudications of the Supreme Court in construing Art. 594 of the Code of Practice, and other pertinent laws, that an appeal is not, in the true sense of the word, "taken" until the order granting the same has been made effective by filing the required bond within the delay fixed by law. Service of citation of appeal is abortive unless the bond is timely filed. The order of the court granting the appeal is without operative effect until and unless the bond is timely filed. Until such bond is filed there is no appeal to abandon. When the bond is filed the appeal is "taken" perfected and the right of all parties concerned, fixed. The filing of the appeal bond, save for restricted purposes, completely divests the trial court of further jurisdiction in the case. Jurisdiction is retained for all purposes until the bond is filed. The cases cited and relied upon by appellee have been tacitly, if not expressly, overruled by the more recent jurisprudence. Police Jury of Parish of St. James v. Borne et al., 192 La. 1041, 190 So. 124; Vacuum Oil Company v. Cockrell, 177 La. 623, 148 So. 898; Lafayette et al. v. Farr et al., 162 La. 385, 110 So. 624. All of these cases hold that the appeal is not "taken" or perfected until the bond has been timely filed and that a devolutive appeal is available to the appellant for one year from the date of the judgment, although the first appeal was not perfected. But, appellee calls attention to the fact that in neither of these cases did the appellant first take only a devolutive appeal. In Police Jury of Parish of St. James v. Borne et al., supra, and in other cases, orders for suspensive and devolutive appeals were simultaneously granted. In such instances the appellant could have perfected either appeal by giving appropriate bond because he had been granted two different appeals. It was optional with appellant to perfect either, both or neither of them. Neither was perfected, but thereafter a new order of devolutive appeal was procured and the appeal perfected. The court upheld these appeals as being valid.

We can perceive no difference in legal contemplation between such cases and the present one in which only a devolutive appeal was granted in each instance. We do not think there is any difference.

In Marine Oil Company, Ltd., v. Cutler Bros. Inc., et al., La.App., 179 So. 485, 487, this court held squarely contrary to defendant's contention here. We said therein: "With reference to the obtaining of more than one order for a devolutive appeal during such term or session, appellants' counsel, in their brief, correctly give our view when they state that "the appellant can secure as many orders of devolutive appeal as he desires where he has not attempted to perfect the same by filing a bond. Since the appeal could not be perfected without filing a bond, there is no way to abandon something that never existed.' " The motion to dismiss is not well founded. It is overruled.

Counsel of appellants now concedes that the exception of no right of action directed against Mrs. Horton's right to sue herein is well founded. The judgment sustaining it is admitted to be correct. There can be no dispute on the question. Civil Code, Art. 221, as amended; Scarborough v. Louisiana Railway & Navigation Company, ...