Opinion
Nos. 7530, 7531.
May 15, 1980. On Rehearing August 14, 1980.
APPEAL FROM 27TH JUDICIAL DISTRICT COURT, ST. LANDRY PARISH, STATE OF LOUISIANA, HONORABLE I. J. GUILLORY, JR., J.
Donald J. Richard, Opelousas, for defendants-appellants.
John Hass Weinstein, Opelousas, Devillier Ardoin, Kenneth Pitre, Eunice, Lewis Lewis, Sandoz, Sandoz Schiff, Leslie J. Schiff, Opelousas, for plaintiff-appellee.
Before CUTRER, SWIFT and DOUCET, JJ.
MOTION TO DISMISS
An ex proprio motu order was issued herein directing appellant, Daniel Richard, to show cause why his appeal should not be dismissed. The appellant has not answered the order to show cause.
On January 23, 1978, Stelly Construction, Inc. Instituted suit against defendant, Daniel Richard, seeking to recover the sum of $1,920.00 allegedly due under a contract in which Stelly agreed to clear defendant's land.
On May 3, 1978, Planters Securities, Inc. filed suit against Daniel Richard and Stelly Construction, Inc. seeking damages sustained as a result of the defendant's trespass on plaintiff's land.
On motion of Daniel Richard, the two cases, presenting common issue of fact, were consolidated for trial.
Following a trial, on June 11, 1979, a judgment was rendered by the court in favor of Stelly Construction, Inc. and against Daniel Richard in the sum of $990.00. The judgment further ordered that costs in Stelly Construction, Inc. v. Daniel Richard (Number 7531) be divided equally between the parties. The judgment is silent as to the claim of Planters Securities against Daniel Richard and Stelly Construction, Inc.
On June 11, 1979, Daniel Richard filed a motion for new trial in the cause entitled Planters Securities Co., Inc. v. Daniel Richard, et al. (Number 7530). On June 25, 1979, the trial judge denied the motion for new trial. On July 20, 1979, Daniel Richard moved for an appeal in the cause entitled Planters Securities Co., Inc. v. Daniel Richard, et al. The trial judge entered an order of appeal granting Daniel Richard's motion.
The issue which faces this court is whether Daniel Richard perfected a valid appeal from the judgment rendered in Stelly Construction, Inc. v. Daniel Richard.
The jurisprudence has held that unless a party obtains an order of appeal duly granted by the trial court, there can be no appeal. Davis v. Funderburk, 274 So.2d 781 (La.App. 3rd Cir. 1973).
An examination of the record reveals that although appellant did obtain an order of appeal in Planters Securities Co., Inc. v. Daniel Richard, et al., no order of appeal was granted by the court in Stelly Construction, Inc. v. Daniel Richard. Since no order of appeal was granted the purported appeal in Stelly Construction, Inc. v. Daniel Richard is dismissed.
We need not consider the appeal in Planters Securities Co., Inc. v. Daniel Richard, et al., because appellant has advised this court that the matter has been settled.
Accordingly, the motion to dismiss is made absolute and the appeal in Stelly Construction, Inc. v. Daniel Richard is dismissed.
APPEAL DISMISSED.
ON REHEARING
By an order of this court, we dismissed the appeal of Daniel Richard, ex proprio motu, on the ground that Richard had not effectuated an appeal in the case of Stelly Construction, Inc. v. Daniel Richard, but that the order of appeal only pertained to the consolidated case of Planters Securities Co., Inc. v. Daniel Richard, et al. This court was notified that the Planters case had been settled, thus, we did not consider the appeal in that case.
Following the dismissal of the appeal in the Stelly case, more documents were filed in the record; namely, the transcript of the arguments for a new trial, a memorandum and a letter submitted to the trial court regarding the motion for a new trial. The memorandum and letter were captioned Stelly Construction, Inc. v. Daniel Richard. A reconsideration of the record along with the additional filings convinces us that we committed error in our dismissal of the appeal. We now agree that Daniel Richard intended to and did appeal the judgment rendered in the Stelly case and not the Planters case.
On January 23, 1978, Stelly Construction, Inc. brought suit against Daniel Richard, seeking to recover $1,920.00 allegedly due Stelly for the clearing of Richard's land.
On May 3, 1978, Planters Securities Co., Inc. brought suit against Daniel Richard, and Stelly Construction, Inc. for damages arising out of an alleged trespass on Planters' land by defendants.
These two cases were consolidated for trial.
At the beginning of trial, counsel for all parties stipulated that Planters had sustained damages in the amount of $1,300.00. The only issue remaining in Planters was the question as to who was liable for the $1,300.00. The trial on the merits concerned principally the issue of the price to be paid Stelly for the land cleared in error.
Reasons for judgment were filed by the trial court on April 23, 1979. The reasons contained the caption of both the Planters and Stelly cases, but a reading of the reasons reflects that they only dealt with the Stelly case. The trial court awarded Stelly "50% of 12 acres at $165.00 per acre" ($990.00).
A formal judgment was signed June 11, 1979 rendering judgment in favor of Stelly Construction, Inc. and against Daniel Richard for the sum of $990.00 plus interest. This judgment was captioned Stelly Construction, Inc. v. Dan Richard and Planters Securities Co., Inc. v. Daniel Richard, et al. On the same day, June 11, 1979, a motion for a new trial was filed by counsel for Richard. This motion carried the caption of the Planters suit but reflected the docket number of both suits. The motion referred to the judgment rendered on June 11, 1979 (judgment in favor of Stelly and against Richard).
A rule, mailed by the clerk, was addressed to Stelly Construction, Inc., ordering Stelly to show cause on June 22, 1979 why the judgment dated June 11, 1979 should not be set aside.
This date was erroneously set forth as "1970" in the rule but this was obvious error and should be 1979.
The motion for a new trial was heard on June 22, 1979. The arguments were transcribed, and since our dismissal, have been included in the record. A reading of these arguments reflects that the motion for a new trial concerned only the Stelly case. The memorandum, which has also been included in the record since our dismissal, pertains to Richard's argument for a new trial in only the Stelly case.
On June 25, 1979, the trial court handed down reasons for denying the motion for a new trial. This document is captioned Planters Securities Co., Inc. v. Daniel Richard, et al. A reading of the reasons, however, reveals that they were reasons for denying the motion for a new trial filed in the Stelly case.
On July 20, 1979, Richard filed a motion for a suspensive appeal wherein he stated:
"Petitioner desires to appeal suspensively from the final judgment rendered in the above cause on the 25th day of June, 1979."
A cash appeal bond of $1,500.00 was filed July 23, 1979.
No formal judgment appears in the record disposing of the Planters case.
We note that caption errors appear in the record as we have pointed out above. When we consider all the proceedings, however, the judgment in the Stelly case, the arguments of counsel at the hearing on the motion for a new trial, memorandum submitted in support thereof, the fact that the only judgment rendered in these cases was a judgment in the Stelly case, the sequence of events and the dates thereof, we come to the conclusion that the errors of captions were inadvertent and that Richard intended to and did actually appeal the judgment rendered in Stelly Construction, Inc. v. Daniel Richard.
The law of this state favors appeals and appeals are to be maintained unless a legal ground for dismissal is clearly shown. Davidge v. Magliola, 346 So.2d 177 (La. 1977). The inadvertent errors of captions herein do not present such a legal ground for a dismissal.
For these reasons, the application for a rehearing is granted, our original order dismissing the appeal herein is hereby vacated and set aside. It is ordered that the appeal herein shall be reinstated and shall be considered as an appeal from the judgment rendered in the case of Stelly Construction, Inc. v. Daniel Richard, bearing our Docket Number 7531.
REHEARING GRANTED; APPEAL REINSTATED.