Kirkeby-Natus Corp. v. Campbell

Decision Date05 June 1967
Docket NumberNo. 48467,KIRKEBY-NATUS,48467
Citation250 La. 868,199 So.2d 904
CourtLouisiana Supreme Court

Steeg & Shushan, Louis G. Shushan, New Orleans, for defendant-appellant.

Monroe & Lemann, Thomas B. Lemann, Bat P. Sullivan, Jr., Stephen B. Lemann, New Orleans, for plaintiff-appellee.

HAMITER, Justice.

In this cause certiorari was granted to permit us to consider the correctness of the Fourth Circuit Court of Appeal's judgment which dismissed the appeal of William T. Campbell, the defendant herein. 192 So.2d 372.

On March 25, 1965 Kirkeby-Natus Corporation obtained a formal judgment against the defendant, without any citation or notice to him, based on a written confession in the amount of $414,200, together with 8% Interest and attorneys' fees.

Thereafter, the defendant moved for a new trial, the motion alleging certain defects in the proceedings. But a new trial was denied on July 6, 1965.

Whereupon, the defendant obtained and perfected a devolutive appeal to the Court of Appeal, and there the merits of the cause was argued and submitted.

Subsequently, that court rendered a judgment (with two judges dissenting) dismissing the appeal ex proprio motu, this without its considering the merits of the case. And, on a rehearing, its judgment was reinstated. 192 So.2d 167.

In the petition for the appeal the defendant alleged that 'Petitioner desires to appeal devolutively from the final judgment rendered in the above cause on the 6th day of July, 1965.' The Court of Appeal, in view of such allegation, held that the appeal was intended to be taken from the judgment overruling the motion for a new trial, which is not appealable; hence, under the provisions of Louisiana Code of Civil Procedure Article 2162, it could and would be dismissed ex proprio motu. In support of its holding the court cited General Motors Acceptance Corporation v. Deep South Pest Control, Inc., 247 La. 625, 173 So.2d 190.

The defendant concedes that the judgment overruling his motion for a new trial is not appealable. However, he insists that he intended to, and did, appeal from the judgment rendered against him on March 25, 1965 which became final on July 6, 1965.

On many occasions in our jurisprudence we have declared that appeals are favored by the courts; that they should be dismissed only for substantial causes; and that unless the grounds urged for dismissal are free from doubt appeals will be maintained. See Emmons v. Agricultural Insurance Company et al., 245 La. 411, 158 So.2d 594 and the cases cited therein. With these principles in mind we have considered the circumstances surrounding the taking of the appeal involved here, and we have concluded that the defendant is correct in his assertion that he intended to, and did, appeal from the March 25, 1965 judgment.

First of all, the only appealable judgment rendered in the litigation was that of March 25, 1965. And while the allegation of the petition for the appeal recited that the petitioner desired to appeal from the final judgment rendered on July 6, 1965, his prayer thereof sought an appeal 'in the above and numbered cause' without reference to the date of judgment. Likewise, the attached order granted an 'appeal from the judgment rendered in the above and numbered cause.'

Again, the preamble to the appeal bond recited: 'WHEREAS, judgment has been rendered by the Civil District Court for the Parish of Orleans in the above entitled and numbered cause in favor of KIRKEBYNATUS CORPORATION and against WILLIAM T. CAMPBELL in the amount of FOUR HUNDRED FOURTEEN THOUSAND TWO HUNDRED AND NO/100 ($414,200.00) DOLLARS (with interest at the rate of 8% Per annum from November 7, 1964, until paid, 10% Attorney fees and all court costs), and the said WILLIAM T. CAMPBELL, defendant, has this day obtained an order of devolutive appeal therein, conditioned upon the furnishing of this obligation.' Of course, we realize that the recitation of the bond may not necessarily govern the appeal; but under the circumstances existing here it is certainly proof that it was defendant's intention to appeal from the March 25, 1965 judgment, that being the only one which cast him for the amount stated.

Finally, both the Appellant and the appellee treated the appeal as one taken from the March judgment which became final in July. Both briefed and argued the case in the Court of Appeal on its merits. No motion to dismiss was ever filed by the appellee. Nor was the alleged defect ever...

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49 cases
  • Joint Legislative Committee of Legislature v. Strain
    • United States
    • Louisiana Supreme Court
    • 1 Mayo 1972
    ...favored by the courts. The dismissal of an appeal should be ordered only for a clear and substantial cause. Kirkeby-Natus Corporation v. Campbell, 250 La. 868, 199 So.2d 904 (1967); Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963); Wischer v. Madison Realty Compan......
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    ... ... Baillio, 252 La. 181, 210 So.2d 312 (1968) ; KirkebyNatus Corporation v. Campbell, 250 La. 868, 199 So.2d 904 (1967) ). Although Ms. Guillory asserted in her motion for appeal that ... (noting that the policy of the FTC Act is to promote and preserve competition); Northam Warren Corp. v. Fed. Trade Comm'n, 59 F.2d 196 (2d Cir.1932) ([The purpose of the Act] is to strike down at ... ...
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