Richardson v. Louisiana Ry. & NAV. Co.
| Decision Date | 30 April 1923 |
| Docket Number | 25901 |
| Parties | RICHARDSON v. LOUISIANA RY. & NAV. CO. In re LOUISIANA RY. & NAV. CO. |
| Court | Louisiana Supreme Court |
Judgment annulled and set aside, and writ of mandamus issued.
Wise Randolph, Rendall & Freyer, of Shreveport, and Peterman, Dear & Peterman, of Alexandria, for relator.
OPINION
R. W. Richardson instituted suit against relator in the Sixth justice of the peace court in the parish of Grant for $ 25. Relator failed to appear through counsel or any of its officers on the day of trial, and on April 19, 1922, the justice of the peace, after hearing plaintiff's evidence, rendered judgment against relator for the amount for which the suit was instituted. Eight days after the rendition of the judgment, and before service of notice of judgment, relator moved for and obtained an order for a suspensive appeal returnable to the district court in and for the parish of Grant. The justice of the peace fixed the appeal bond at $ 50. The transcript of appeal was filed in the district court on May 15, 1922.
Richardson filed a motion to dismiss the appeal on the following grounds, to wit:
The district judge maintained the motion to dismiss. Relator then made application to this court for writs of certiorari, mandamus, and prohibition to be directed to the district judge. Relator alleges in its application, among other things, that within 10 days after rendition of judgment by the justice of the peace it appeared in open court and moved for a suspensive appeal, returnable to the district court for the parish of Grant, that the appeal was granted upon the condition that relator furnish bond in the sum of $ 50, and that on the same day it furnished the required bond, with good and solvent surety.
The district judge, in obedience to the writ of certiorari issued herein, has filed in this court a copy of the record in the case under review, and has filed his answer to relator's application for the writs mentioned. He avers that he maintained the motion to dismiss the appeal because Richardson, the appellee, had not been cited to answer the appeal; because no day was fixed for the return of the appeal; because the transcript was not filed in his court within the time fixed by law; because the certificate of the justice of the peace to the transcript is defective in that it does not purport to cover all proceedings had in the case, but reads, merely, "that the above (that is, the transcript) is a true copy taken from my docket in the above suit No. 52, R. W. Richardson v. L. R. & N. Co."; and because the transcript does not show that the appeal bond found in it was filed by relator; that the only file mark found on the bond is that of the clerk of the district court of date May 15, 1922. He also avers as proof of the defectiveness of the transcript, including the certificate thereto attached, that accompanying its only page, is found the citation, the notice of judgment, certain subpoenas of witnesses, an exception to the citation served on relator, the cost bill, and the bond of defendant for appeal. These, he avers, are found in the record, but that it does not appear that they were filed in the justice of the peace court.
In our view, the trial judge erred in dismissing the appeal. It is true that it does not appear that Richardson was cited to answer the appeal, and it is also true that, unless Richardson cured the defect, he was entitled to citation. However, a failure to cite an appellee in an appeal to the district court is cured by his appearance in that court for any other purpose than to except to the appeal on the ground that he has not been cited to answer it. Here the appellee moved to dismiss on other grounds, without even alleging them as alternative grounds for dismissal. By thus pleading, he has cured the defect caused by the failure to cite him. It is true that in appeals to this court a somewhat different rule applies. In such appeals, 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...
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