On Motion to Dismiss.
BREAUX, C. J.Appellee’s grounds to dismiss are that the order for an appeal was moved for orally in open court on August 8, 1906, and was granted in open court; that the cause was tried and judgment pronounced during the month of April, 1906; that the term of court expired July 2, 1906; that as a result the order of appeal was granted at a term subsequent to that in which the cause was tried and judgment rendered; that the appeal should be dismissed for want of citation and petition.
Appellant urged, in answer to this motion of appellee to dismiss, that the district court has no terms; that it holds sessions' continuously, and that in this instance it held session until August 8, 1906, when the appeal was taken; that article 117 of the Constitution orders the district court to hold a continuous session; that in any event the appellant secured an extension of the return day,1 which cures all defects (if defect there was).
The following is an excerpt from the order of the court regarding the beginning of the term, to which appellant invites our attention:
“To wit: In the parish of Calcasieu, on the first Monday after the 1st day of January, and *449the third Monday after the 4th of July, of each year; in the parish of Cameron, on the first Tuesday after the 4th of July, and the second Tuesday in the month of December, of each year.”
This is the only order there is regarding terms of court in the parish of Calcasieu. The judge has not fixed the day on which the term shall terminate. Only the beginning of the term is fixed. He has in effect substantially reserved to himself the right to ■open his court whenever he deems it proper for the dispatch of business. He has made no attempt by the order to fix the term of the court within the meaning of article 573 of the Code of Practice, which under former laws provided for monthly terms.
The minutes before us show that the court did not adjourn its term on the 7th of July, 1906, as stated by plaintiff in his motion. On the 7th day of July, 1906, it adjourned to the 21st day of that month, and the adjournment continued to the 8th of August. On that day the court adjourned to the 1st day of October, rendering it evident that the judge had not intended and did not intend to fix a particular time for the adjournment of any term. Moreover, even if there was a subsequent term of the court, the appellant met the objection to the appeal here urged in the motion to dismiss by having a citation of appeal served before the expiration of the return day of the appeal. The order of appeal was entered in open court, and citation upon that order was regularly served.
A similar service was made in case of Prudhomme v. Edens, Adm’r, 6 Rob. 64. The judge had allowed a motion to be made at a subsequent term of his court. A citation having been served on the appellee and the other substantial requisites having been complied with, the court held that there was not sufficient ground to dismiss the appeal. The appellee had had all the defenses he would have been entitled to, had an ordinary petition of appeal been filed.'
It was decided in De St. Avid v. Pichot, 3 La. Ann. 6, that an appeal applied for by motion at a term succeeding the term at which the judgment was rendered will not be dismissed on the ground that the application should have been by petition in the ordinary form, and not :by motion; that it was all-sufficient if the appellee was cited. De St. Avid v. Pichot, 3 La. Ann. 6.
Wheeler v. Peterkin et al., 38 La. Ann. 663, is another case in point. The order of appeal had been granted by motion in open court at a different term of the court. The appellee having been duly cited on this motion, the court upheld the appeal.
To the same effect is Widow De St. Romes v. McCarty, 21 La. Ann. 277; Pratt v. Erwin, 5 La. Ann. 115; State ex rel. City of New Orleans v. Judge, 21 La. Ann. 734.
We have not found any merit in the motion.
For reasons assigned, the motion to dismiss the appeal is overruled.