Templeman v. Templeman Bros., Inc

• Decision Date: 15 October 1934
• Docket Number: 14998
• Citation: 156 So. 824
• Court: Court of Appeal of Louisiana — District of US
• Parties: TEMPLEMAN v. TEMPLEMAN BROS., Inc

156 So. 824

TEMPLEMAN v. TEMPLEMAN BROS., Inc

No. 14998

Court of Appeal of Louisiana, Orleans.

October 15, 1934

Prowell, McBride & Ray, of New Orleans, for mover.

Maurice B. Gatlin, of New Orleans, for defendant in rule.

OPINION

LECHE Judge ad hoc.

This suit was filed in the Civil district court by Mrs. Geo. N Templeman against Templeman Brothers, Inc., a Louisiana corporation domiciled in the city of New Orleans. Judgment was rendered on May 31, 1934, in favor of plaintiff.

On July 9, 1934, the following motion and order was presented and signed by the trial judge:

"On motion of Robert N. Templeman, defendant in the above numbered and entitled cause and on suggesting to the Court that he is aggrieved by the judgment rendered by this court on the 31st day of May, 1934, and desires to appeal therefrom suspensively and devolutively to the Court of Appeal for the Parish of Orleans and signed June 11th, 1934.

"It is ordered by the court that defendant, Robert N. Templeman be granted and he is hereby granted an appeal suspensive and devolutive to the Court of Appeal for the Parish of Orleans upon defendant furnishing bond, conditioned as the law directs in the sum of $ 100.00 for the devolutive appeal and in the sum fixed by law for the suspensive appeal, returnable to the Court of Appeal for the Parish of Orleans on the 9th day of July, 1934.

"Michel Provosty, Judge."

The appeal was lodged in this court on September 10, 1934.

On September 13, 1934, plaintiff and appellee moved to dismiss the appeal on the following grounds:

"1. That the defendant herein did not apply for the appeal and is not before the court as appellant.

"2. That Robert N. Templeman, the party who moved for the appeal, is without interest herein, and that the said Robert N. Templeman, should he have an interest herein, has not furnished an appeal bond."

On September 15, 1934, the attorney for defendant and appellant, in his own handwriting, changed the verbiage of the motion and order for the appeal and, in a marginal note, stated that the changes were made by him at that time. In a brief in opposition to the motion to dismiss the appeal counsel says that these changes were dictated by him to his stenographer, but omitted by oversight. The trial judge signed the order of appeal as presented to him and did not sign the order as subsequently amended by appellant's counsel, and the question must be decided on the basis of the language of the original motion and order as signed by the trial judge.

The appeal bond is given in the name of the defendant corporation and recites:

"Now the condition of the above obligation is such, that the above bound Templeman Brothers, Inc., shall prosecute its suspensive and devolutive appeal, and shall satisfy whatever judgment may be rendered against it, or that the same shall be satisfied by the proceeds of its estate, real or personal, if it be cast in the appeal. (3)5C"

Plaintiff and appellee contends that the defendant corporation did not appeal, but that its president, Robert N. Templeman, appealed individually, and said appeal should be dismissed, first, for want of interest, and, second, because Robert N. Templeman has furnished no appeal bond individually.

The motion for appeal reads:

"On motion of Robert N. Templeman, defendant in the above-numbered cause," etc.

The order of appeal signed by the trial judge reads:

"It is ordered by the court that defendant, Robert N. Templeman, be granted and he is hereby granted an appeal," etc.

The motion and order of appeal cannot be construed as an appeal by Robert N. Templeman, individually, as nowhere is the word "individual" or "individually" used. On the contrary, the motion is made and the appeal granted to defendant. It is true that the use of the name "Templeman Brothers, Inc.," in place of the name "Robert N. Templeman" in the motion and order would have removed all doubt. However, the use of the word "defendant" in both motion and order, coupled with the fact that defendant, Templeman Brothers, Inc., have furnished and are the principal on the appeal bond, makes certain that it was the intention and that the appeal was taken by Templeman Brothers, Inc., defendant in the suit, and under the circumstances the use of the name Robert N Templeman in...