On Motion to Dismiss the Appeal. The appellees have moved to dismiss this appeal on the ground that there was no citation of appeal, nor prayer for citation, notwithstanding the appeal was obtained by motion and order in open court at a term subsequent to that in which the judgment was rendered and signed.
The judgment was rendered by the district court in Bienville parish, which is in the Second *Page 965 judicial district, embracing also Webster parish and Claiborne parish. The judgment was rendered and signed in open court on the 26th of February, and the appeal, which is only a devolutive appeal, was obtained by motion and order in open court on the 25th of March. The session of court in which the judgment was rendered continued in Bienville parish until the 8th of March, after which the court held a session of two weeks in Claiborne parish, and reconvened in Bienville parish on the 25th of March, the day on which the appeal was taken. In the order of court fixing the dates of the sessions to be held in each of the three parishes, the sessions are called "terms" of court. Section 43 of article 7 of the Constitution of 1921 (which was article 117 of the Constitution of 1898 and of 1913), and Act No. 163 of 1898, p. 320, carrying the provisions of article 117 of the Constitution of 1898 into effect, requires that every district court throughout the state shall hold a continuous session of ten months in each year, and requires that: "In each district composed of more than one parish, the judge shall sit alternately in each parish, as the public business may require."
The question presented by the motion to dismiss this appeal is whether the obtaining of an appeal by motion and order in open court at the same session of ten months, in which the judgment was rendered and signed, is sufficient to avoid the necessity for a citation of appeal, notwithstanding the judge held a session of court in another parish after the judgment was signed and before the appeal was taken. The question was answered in the affirmative in Ryland v. Harve M. Wheeler Lumber Co.,146 La. 787, 84 So. 55, where it was held that the word "session," as used in article 117 of the Constitution of 1898 and of 1913, was synonymous with "term," viz.: *Page 966
"Where it appears that a district court has set apart the months of August and September as the period of its annual vacation, it necessarily follows that the months from October to July, inclusive, constitute the ten months' continuous session or term required by article 117 of the Constitution, and it also follows that an appeal taken in November from a judgment rendered in October is taken during the term at which the judgment was rendered, even though at a session subsequent to that at which the rendition took place, and that it is properly taken by motion and without citation of the appellee."
To the same effect were the rulings in State v. Winters,109 La. 3, 33 So. 47; State v. Freddy, 118 La. 468, 43 So. 53; State v. Thompson, 121 La. 1051, 46 So. 1013; and Carr et al. v. Louisiana Central Lumber Co., 137 La. 419, 68 So. 747.
In the Act 163 of 1898 the so-called terms of court, which the district judges are required to hold in each parish alternately, are called "sessions," in every instance in which they are referred to in the statute. In the third section of the act it is said that the intent and meaning of section 43 of article 7 (which was then article 117) of the Constitution is that the order of a district court fixing the sessions in each parish in the judicial district shall not interrupt the continuity of the annual sessions of ten months, or affect the authority or duty of the judge to sit at any time in any parish in his district when the public interest may require it.
Counsel for the appellees in this case quotes and relies upon an expression taken from the syllabus of the opinion rendered, originally, in State v. Vicknair, 118 La. 963, 43 So. 635, viz.: "The expression `open court,' as used in Act No. 108, p. 155, of 1898, means the actual session of the court while the judge is *Page 967 on the bench, as contradistinguished from the `continuous session,' of 10 months, provided for by article 117 of the Constitution." That idea was expressed in the opinion originally rendered in the case, but the decision was reversed on rehearing; and the author of the original opinion in that case was also the author of the opinion to the contrary, rendered subsequently, in Ryland v. Harve M. Wheeler Lumber Co., supra. It is said that the ruling made in the latter case might have been founded upon the fact that a motion for a new trial was pending and suspended execution of the judgment until the beginning of the session of court held subsequent to that in which the judgment was rendered and signed. It is true that that reason might have been given, but the fact is that it was not given, as the reason for overruling the motion to dismiss the appeal. The reason which was given was a sound one, and the lawyers practicing in the district courts have the right to rely upon our adhering to it.
The motion to dismiss the appeal is overruled.
On the Merits.