Opinion
No. 20556.
May 23, 1955.
APPEAL FROM CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, NO. 326-344, DIVISION "D", STATE OF LOUISIANA, HONORABLE RENE A. VIOSCA, J.
Solomon S. Goldman, New Orleans, for plaintiff and appellee.
Frank P. Krieger, New Orleans, for defendant and appellant.
Appellee's motion to dismiss this appeal must prevail. The ground urged for the dismissal is that defendant secured the appeal by motion in the Civil District Court for the Parish of Orleans at a term subsequent to that at which the judgment was rendered and that citation of appeal was neither prayed for, issued, nor served.
The record in the matter discloses that the judgment in favor of plaintiff was rendered in the court below on April 23, 1953, and signed on April 29, 1953. On December 15, 1954, at a term of court subsequent to that at which the judgment was rendered and signed, the defendant filed a motion in open court for a devolutive appeal and was granted an order making the appeal returnable to this court on January 12, 1955. The appellant did not pray for an order for citation of appeal on plaintiff-appellee.
Under the circumstances, the appeal must be dismissed. See Graves v. D'Artois, 210 La. 857, 28 So.2d 457; Haydel v. Major, La.App., 19 So.2d 628.
Therefore, the motion is sustained and the appeal is dismissed at appellant's cost.
Motion sustained; appeal dismissed.
JANVIER, J., absent.