Vitrano v. Vitrano
| Decision Date | 13 December 1977 |
| Docket Number | No. 8570,8570 |
| Parties | Sam J. VITRANO v. Gregory VITRANO. |
| Court | Court of Appeal of Louisiana — District of US |
Charles S. Lagarde, Jr., Luling, for Sam J. Vitrano, plaintiff-appellee.
Gordon Hackman, Boutte, for Gregory Vitrano, defendant-appellant.
Before LEMMON, BOUTALL and SCHOTT, JJ.
The issue presently before us is a procedural matter, arising out of a suit to annul an act of sale of real estate for lack of consideration. One of the defendants, Joan Melancon Vitrano, took a devolutive appeal from a default judgment annulling the sale and ordering the property transferred back to plaintiff, Sam J. Vitrano, and it is the timeliness of this appeal which is in question.
The default judgment was signed on October 22, 1976, no new trial was requested, and on January 10, 1977 Joan Vitrano filed a petition for suspensive appeal, accompanied by a bond. This was denied the same date by the trial judge on the ground that the delays had passed. However, on January 17, 1977, the trial judge signed an order of devolutive appeal and another bond was posted on January 20th. Appellee, Sam J. Vitrano, then filed answer in this court seeking damages for frivolous appeal, together with a motion to dismiss the appeal because it was untimely filed.
We considered that motion and denied it because there was no evidence contained in the record to show personal service of process on the defendant and no showing that the notice of judgment required in C.C.P. Article 1913 was sent. Without proof of one or the other situation, the motion to dismiss was necessarily denied. See 346 So.2d 303.
Since that time, the record has been supplemented by the filing of service of process and citation with the return of the Sheriff showing personal service upon the defendant, Joan Melancon Vitrano, on the 23rd day of September, 1976. The appellee has filed another motion to dismiss, and the matter came up along with the regular assignment on the merits. In any event we are required to notice, sua sponte, our lack of jurisdiction. Reeves v. Reeves, La.App.1975, 315 So.2d 162. As the record now stands in this case, there was personal service on the defendant which removes the requirement of notice of judgment under C.C.P. Article 1913, and the appeal before us is on the face of the record, untimely taken.
We call attention to the fact that from the date of judgment, October 22, 1976 to the filing of the devolutive...
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... ... La.C.C.P. art. 2088; Guilliot v. City of Kenner, 326 So.2d 359 (La.1976); Vitrano v ... Vitrano, 353 So.2d 398 (La.App. 4th Cir.1977), writ not considered 354 So.2d 1046 (La.1978). If the time fixed by law for appealing has ... ...
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...Inc., 412 So.2d 1161 (La.App. 3rd Cir.1982); Anderson v. City of Baton Rouge, 381 So.2d 842 (La.App. 1st Cir.1980); Vitrano v. Vitrano, 353 So.2d 398 (La.App. 4th Cir.1977). In the instant case, the time for seeking judicial review of the Board's adverse decision expired prior to the filing......
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Smith v. Acad. Sports & Outdoors
...See LSA–C.C.P. Art.2088. Failure of the appellant to obtain the order of appeal forfeits his right to appeal. See Vitrano v. Vitrano , 353 So.2d 398 (La.App. 4 Cir.1977), writ not considered , 354 So.2d 1046 (La.1978). Thus, the appellate court has the authority to dismiss an appeal on its ......
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98 1370 La.App. 4 Cir. 11/18/98, Stein v. Martin
...See LSA-C.C.P. art.2088. Failure of the appellant to obtain the order of appeal forfeits his right to appeal. See Vitrano v. Vitrano, 353 So.2d 398 (La.App. 4 Cir.1977), writ not considered, 354 So.2d 1046 (La.1978). Thus, the appellate court has the authority to dismiss an appeal on its ow......