Lafayette v. Farr

• Decision Date: 05 October 1926
• Docket Number: 27646
• Citation: 110 So. 624,162 La. 385
• Court: Louisiana Supreme Court
• Parties: LAFAYETTE et al. v. FARR et al

110 So. 624

162 La. 385

LAFAYETTE et al. v. FARR et al

No. 27646

Supreme Court of Louisiana

October 5, 1926

Rehearing Denied November 29, 1926

Appeal from Eighteenth Judicial District Court, Parish of Pointe Coupee; Calvin K. Schwing, Judge.

Petitory action by James Lafayette and others against C. A. Farr and another. Judgment for defendants, and plaintiffs appeal. On motion to dismiss.

Appeal dismissed.

Charles J. Mundy, of Thibodaux, for appellants.

Miguel T. Hewes, of New Roads, for appellees.

OPINION

O'NIELL, C. J.

This is a petitory action, in which the plaintiffs have appealed from the judgment rejecting their demand. The appellees have moved to dismiss the appeal for the reason, first, that the warrantors of the defendant's title for the land in dispute, who are the real defendants in the suit, were not cited to answer the appeal; and, second, that the appeal bond was not filed within the year allowed for taking an appeal.

The petition for appeal was filed two days before the expiration of the year after the judgment was signed; and, on the same day on which the petition was filed, the judge signed the order granting a devolutive appeal on condition that the plaintiffs should give bond for $ 200. A citation of appeal was served upon each of the defendants on the same day, that is to say, two days before the expiration of the year allowed for taking an appeal, but the citation was not served upon any of the warrantors. The appeal bond for $ 200, signed by a surety company as surety, and conditioned according to law was filed on the forty-fifth day after the expiration of the year allowed for taking an appeal. No bond had been filed or tendered by the plaintiffs within the year. It appears therefore that, although the order of appeal was obtained in time, the appeal bond was not filed until the year in which the plaintiffs had the right to appeal had expired.

The obtaining of an order of appeal within the time prescribed is not availing without the bond required by the order of appeal. It is not necessary that the citation to answer the appeal shall be served within the time prescribed by law for taking an appeal, but the order of appeal being subject to the condition that the appellant shall furnish a bond for the amount either fixed in the order or required by law, remains in abeyance and without effect until the bond is filed. Therefore an appeal is not deemed taken within the time prescribed by law for taking an appeal unless the bond required by the order of appeal is filed within the time prescribed. Marigny v. Stanley, 2 La. 322; Barremore's Syndic v. Bradford's Heirs, 10 La. 149; Sibley v. Roman Catholic Congregation, 3 Rob. 77; City Bank v. Kent, 7 Rob. 60; Mayer v Prudhomme, 1 La.Ann. 230; Gibson v. Selby, 2 La.Ann. 628; Brickell v. Conner. 10 La.Ann. 235; Hall v. Beggs, 17 La.Ann. 238; Mortee v. Edwards, 20 La.Ann. 236; Wood v. Calloway, 21 La.Ann. 119; Bank of America v. Fortier, 27 La.Ann. 243; Edwards v Marin, 28 La.Ann. 567; Boutte v. Boutte, 30 La.Ann. 177; Ulman & Co. v. Briggs, Payne & Co., 32 La.Ann. 655; Bowie v. Davis, 33 La.Ann. 345; Reed v. His Creditors, 37 La.Ann. 907; Upton v. Adeline Sugar Co., 109 La. 670, 33 So. 725.

The only doubt that the appeal in this case should be dismissed arises from the fact that, after the appellants had filed the transcript in this court and before the appellees filed their motion to dismiss the appeal, they filed a motion to have the case advanced to the summary docket and fixed for an early hearing, and on their motion the case was so fixed for hearing. Two months afterward, in their motion to dismiss the appeal, they averred that they had not discovered the facts or omissions on which they based their motion to dismiss until they undertook to write their brief, which was filed on the next day after the motion to dismiss was filed.

As a general rule, when an appellee asks for and obtains an assignment of the case for a hearing on its merits, he thereby waives any objection that he might have to the appellant's right to prosecute the appeal. Creevy v. Breedlove, 12 La.Ann. 745; White v. Maguire, 16 La.Ann. 337; Golden v. Board of Directors, 34 La.Ann. 354; State ex rel. Broussard v. Voorhies, Judge, 49 La.Ann. 1562, 22 So. 880; Saxon v. Southwestern Brick & Tile Mfg. Co., 113 La. 637, 37 So. 540; Lane v. Ferre, 147 La. 796, 86 So. 186. This rule applies particularly to a motion to dismiss an appeal for want of citation. Creevy v. Breedlove, 12 La.Ann. 745; White v. Maguire, 16 La.Ann. 337; and State ex rel. Broussard v. Voorhies, Judge, 49 La.Ann. 1562, 22 So. 880. In that respect, it has been held that, if an appellee, moving to dismiss the appeal for want of citation, first urges some other ground for dismissing the appeal, he thereby waives the objection of want of citation. State ex rel. Nixon v. Graham, Auditor, 25 La.Ann. 433; Hefner v. Hesse, 26 La.Ann. 148; Vallee v. Hunsberry, 108 La. 136, 32 So. 359; Lane v. Ferre, 147 La. 796, 86 So. 186; Phillips v. Phillips, 160 La. 813, 107 So. 584. In this case, the warrantors, who were the actual defendants in the suit, joined with the original defendants in their motion to advance the case to the summary docket, and thereby took cognizance of the appeal, and, in effect, waived service of citation to answer the appeal.

The other objection, however, on which the appellees ask that the appeal be dismissed, is not subject to the general rule that, when an appellee appears in the appellate court and has the case fixed for a hearing on its merits, he thereby waives his right to ask that the appeal be dismissed. In the case of Untereiner v. Miller et al., 29 La.Ann. 435, Untereiner, having a judgment for $ 900 against Miller, brought a revocatory action against Miller and Hall to have a sale by Miller to Hall declared fraudulent and simulated. Hall did not answer the suit, and judgment was taken against him by default, declaring the sale fraudulent and simulated. It was agreed then between the attorneys representing the plaintiff and those representing both defendants that the delay for taking a suspensive appeal from the judgment against Hall should be extended until the expiration of the time within which a suspensive appeal might be taken from whatever judgment might be rendered against either Untereiner or Miller. Miller answered and resisted the suit, but judgment was finally rendered against him, again declaring the sale to Hall to be fraudulent and simulated. This judgment, against Miller, was not rendered until a year and a few days after the signing of the judgment by default against Hall. No appeal was taken from the judgment against Miller, but, within ten days after it was rendered, Hall obtained an order for a suspensive appeal from the judgment which had been rendered against him, more than a year before, and gave bond for the amount fixed in the order of appeal. Untereiner moved to dismiss the appeal, so far as it was a suspensive appeal, on the ground only that the bond was insufficient in amount. The court found that the bond was sufficient and that the motion to dismiss the appeal was therefore not well founded, but the court, of its own motion, and notwithstanding the agreement of counsel, dismissed the appeal for want of jurisdiction because the appeal was not taken within the year after the judgment appealed from had been signed. Quoting article 593 of the Code of Practice, declaring that "no appeal will lie" after a year has passed since the signing of the judgment, the court said:

"This law is imperative, and it cannot be abrogated by the agreement of counsel to extend the delay for the taking of a suspensive appeal. No consent of parties can give this court jurisdiction or enlarge its powers. If, in any given case 'no appeal will lie,' whether because of the amount in dispute, or because the time limited for an appeal has expired, the appellate court has no jurisdiction, and every court is bound, ex officio, to take notice of the want of jurisdiction patent on the face of the record, although the parties may be willing...