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General Auto Service, Inc. v. Lombard

Court of Appeal of Louisiana, Fourth Circuit
Dec 3, 1962
147 So. 2d 31 (La. Ct. App. 1962)

Opinion

No. 988.

December 3, 1962.

APPEAL FROM FIRST CITY COURT OF THE CITY OF NEW ORLEANS, NO. 32-547, SECTION "B", STATE OF LOUISIANA, HONORABLE L.F. WINGERTER, J.

Morphy Freeman, A.D. Freeman, Jr., New Orleans, for plaintiff and appellant.

Dudley D. Flanders, New Orleans, for defendant and appellee.

Before REGAN, YARRUT and TURNER, JJ.


Defendant-appellee moves to dismiss appellant's devolutive appeal on the ground that on June 14, 1962, plaintiff appealed from a judgment rendered by the First City Court of New Orleans, which judgment it is alleged in the motion of appeal was dated November 25, 1958. However, in appellant's return to the motion to dismiss, counsel states that the judgment of the lower court was rendered on May 31, 1962, but that, through inadvertence, the date of the judgment is incorrectly set forth as November 25, 1958. Counsel prays that he be allowed to correct the erroneous date.

It would be foolhardy for a party to appeal from a judgment in which it had been awarded a judgment as prayed for. It necessarily follows that there was a clerical error which is perfectly clear to this court since the record containing both judgments is before us. LSA-C.C.P. art. 865 reads as follows:

"Construction of pleadings

Every pleading shall be so construed as to do substantial justice."

Accordingly, appellant is authorized to correct the date in the motion for appeal so as to show the proper date of the judgment from which the devolutive appeal is taken, that is, May 31, 1962. Appellee's motion is denied.

Motion denied.


Summaries of

General Auto Service, Inc. v. Lombard

Court of Appeal of Louisiana, Fourth Circuit
Dec 3, 1962
147 So. 2d 31 (La. Ct. App. 1962)
Case details for

General Auto Service, Inc. v. Lombard

Case Details

Full title:GENERAL AUTO SERVICE, INC. v. CLEMENT LOMBARD

Court:Court of Appeal of Louisiana, Fourth Circuit

Date published: Dec 3, 1962

Citations

147 So. 2d 31 (La. Ct. App. 1962)

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