Riggs v. F. Strauss & Son

• Decision Date: 19 May 1941
• Docket Number: 6222.
• Citation: 2 So.2d 501
• Court: Court of Appeal of Louisiana — District of US
• Parties: RIGGS v. F. STRAUSS & SON ET AL.

2 So.2d 501

RIGGS v. F. STRAUSS & SON ET AL.

No. 6222.

Court of Appeals of Louisiana, Second Circuit

May 19, 1941

Travis Oliver, Jr., and Hillyer S. Parker, both of Monroe, for appellant.

Hudson Potts, Bernstein & Snellings, W. Potts Clark, and C Elliott Thompson, all of Monroe, for appellees.

HAMITER Judge.

Plaintiff Miss Winnifred Riggs, accompanied by James L. Baur, drove her Chevrolet automobile from Monroe, Louisiana, east to Rayville, Louisiana, a distance of approximately twenty-five (25) miles, during the evening of November 25, 1938. At a night club near the last named municipality the couple enjoyed dancing for several hours and then commenced the return journey.

On departing from Rayville Miss Riggs was driving; but after traveling two or three miles she became sleepy and requested her escort to operate the car. Thereupon the change was effected; and she while sitting on the front seat beside the driver, placed her head against the door and fell asleep.

The awakening of plaintiff occurred as the machine, which was still being driven by Baur, crashed into a truck belonging to F. Strauss & Son that was parked on the wrong side of the highway, and in a curve, at a point approximately thirteen (13) miles east of Monroe.

In this suit Miss Riggs alleges various damages sustained by her as the result of the accident, and for these she asks judgment against the partnership of F. Strauss & Son and against its individual members and the insurer thereof. The truck operator, who allegedly was at the time acting in the course and scope of his employment with the named partnership, is charged with numerous acts of negligence.

The several defendants filed an answer and joined issue, after which a trial of the merits took place. Resulting was a judgment rejecting the demands of plaintiff that was rendered, read aloud and signed on March 18, 1940.

Plaintiff immediately requested orders of devolutive appeal. These were granted and made returnable to this court on May 5, 1940, without bond. The transcript and record were not lodged here, however, until June 19, 1940, or forty-five (45) days after the named return date, and there was obtained no extension of time for the filing. This delinquency prompted, and was the basis for, the tendering by defendants of a motion to dismiss the appeal.

With reference to the motion counsel for movers respectfully and frankly state:

"At the outset, permit us to say to Your Honors that we are not unaware nor unappreciative of the rule heretofore enunciated by this Honorable Court as prevailing in this Court, to the effect that the duty of making up the record for an appeal and the timely filing thereof is the duty of the Clerk of the District Court and that his omission or failure in that respect cannot be imputed to the appellant so as to require a dismissal of the appeal. That rule as enunciated heretofore by Your Honors also creates an automatic extension of the return day until the transcript is actually filed."

A reconsideration of the question is urged for the reason, so they contend, that the rule now prevailing in this court "seems violative of constitutional and statutory enactment and also violative of sound logical analysis."

It was said in Stockbridge v. Martin et al., 162 La. 601, 602, 110 So. 828, 829, a case passed upon by us on appeal and considered by the Supreme Court on a writ of certiorari, that:

"* * * it is manifest that the rule which prevails in the Supreme Court with regard to the abandonment of appeal by failure of the appellant to file the transcript in time is not applicable and should not be enforced against an appellant in an appeal to the Court of Appeal, where the clerk of the court fails to transmit the record to the Court of Appeal on or before the return day."

The announced doctrine, since such decision, was further recognized and approved by the Supreme Court in Sanders et al. v. Wyatt et al., 187 La. 80, 174 So. 161, and has been consistently adhered to by this court. Devereaux & Ashby v. Rochester, 10 La.App. 430, 120 So. 658; Carter v. Bolden, 11 La.App. 655, 124 So. 562; Dupuy v. Phillips, 14 La.App. 696, 130 So. 855; Morehouse Lumber & Building Material Company, Inc. v. Jacob & Walker, 17 La.App. 409, 136 So. 106; Danna v. Yazoo & M. V. Railroad Company, La. App., 154 So. 365; Dorfer v. City of Natchitoches, La.App., 160 So. 807; Twin City Motor Company v. Pettit, La.App., 177 So. 814; Bolton v. Eznack, La.App., 187 So. 840; and Wilson v. Lee, La.App., 196 So. 373.

The several contentions and arguments advanced in the instant cause in support of the motion to dismiss have been carefully considered, and we are not convinced that the stated rule is basically unsound or is in contravention of the procedural laws of this state. To say the least, there appears nothing to justify our offending against the unambiguous pronouncement of our highest tribunal.

Counsel for movers state that in Jackson v. Weeden et al., 17 La.App. 306, 135 So. 745, 746, this court "six years after the decision in Stockbridge v. Martin, dismissed an appeal on the same ground of untimely filing of the transcript, and held that the record not having been filed until twenty-eight (28) days after the return date, the appeal was to be deemed conclusively abandoned."

The Jackson case did not evidence a departure by us from the discussed and adopted procedure. There were two reasons for the dismissal therein of the devolutive appeal sought to be taken by defendant. The first was that defendant moved orally for the appeal at a time subsequent to the term at which the judgment was rendered, whereas orders of appeal should then have been obtained through the process of petition and citation. Regarding the other reason we said:

"* * * The record was not returned into this court until twenty-eight days after the return date and the appellant has in no way attempted to or filed in this court anything to show that it was not returned through no fault of his. He has not shown that he made the necessary deposit to cover the cost of appeal, either with the clerk of the district court or with the clerk of this court, on or before the return day, or the three days of grace allowed for said filing. Therefore the appeal was abandoned. Article 587, Code Prac., and citations thereunder."

The same counsel further state that the rule obtaining in the Supreme Court, which is contrary to ours, "is invariably followed in the Court of Appeal for the First Circuit" and they cite Wiggins v. Texas & New Orleans Railroad Company, 17 La.App. 31, 135 So. 265, Weber v. Kemp, La.App., 148 So. 279, and Sanders v. Wyatt, La.App., 170...