Knoll v. Knoll - Case Law

On Motion to Dismiss.

PROVOSTY, J.

An order granting an appeal on motion in open court, and duly entered on the minutes, need not be signed by the judge. No law requires it to be signed by the judge, and it is sufficiently authenticated by being entered on the minutes.

Act No. 49, p. 151, of 1871, amends article 573 of the Code of Practice by adding thereto the following:

“But in cases where the judgment decrees a divorce, such petition or motion of appeal must be filed within 30 days not including Sundays, after the signing of such judgment, instead of 10 days, and shall operate as a suspensive appeal therefrom, and there shall be no devolutive appeal allowed thereafter.”

This act in distinct terms applies only to cases of divorce. It does not apply to cases of separation from bed and board. A separation -from bed and board is not a divorce. The Code treats of the two sep

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arately. Thus the rubric of title 5 of the Code is “Of separation from bed and board, .and of divorce.” And the rubric of chapter 1 under that title is “Of the causes of separation from bed and board, and of divorce.” And different causes are assigned for the two. True, a divorce may grow out of a separation from bed and board, but so do “tall oaks from little acorns grow.”

The appeal in this case, having been taken after the expiration of the 10 days, is not suspensive, but it is good as a devolutive appeal. “Though the prayer and the order were for a suspensive appeal solely, the appeal will be sustained as devolutive, if the amount of the bond was fixed in the order.” Succession of Keller, 39 La. Ann. 579, 2 South. 553; Succession of Bey, 47 La. Ann. 219, 16 South. 825; Michenor v. Reinack, 49 La. Ann. 360, 21 South. 552; Weil v. Schwartz, 51 La. Ann. 1547, 26 South. 475; Succession of Watt, 111 La. 937, 36 South. 31.

The appeal is therefore dismissed as a suspensive appeal, but is maintained as a devolutive appeal.