On Rehearing. On Motion to Dismiss Appeal.
By the WHOLE COURT.
LECHE, J.The appellee in the above matter has filed a motion to dismiss this appeal on two grounds: (1) That appellant has failed to apply in the trial court, either for a rehearing or for a new trial, and therefore has not exhausted his remedies before appealing; and (2) “that no citation of appeal was issued or served herein.”
1. The first ground presents no reason for the dismissal of the appeal. The case does not come into this court by virtue of a writ of error or a writ of review. There is no rule in law or jurisprudence in this state, requiring the party cast in a suit, to apply for a rehearing or for a new trial before he may appeal. The rule in jurisprudence is otherwise. Levert v. Berthelot, 127 La. 1004, 54 South. 329; Connelly v. Southern Pacific Co., 140 La. 120, 72 South. 829; Grevemberg v. Roane, 133 La. 679, 63 South. 280.
2. The second ground for dismissal was waived by pleading the first one. Appearance for any other purpose is a waiver of the motion to dismiss for want of citation of appeal. Commercial National Bank v. Sanders, 132 La. 174, 61 South. 155; Vallee v. Hunsberry, 108 La. 138, 32 South. 359. Again, it appears from the additional documents filed in order to complete the transcript that the appeal was taken by motion in open court at the same term, and therefore that no citation of appeal was necessary. Vallee v. Hunsberry, 108 La. 137, 32 South. 359. The motion to dismiss is therefore overruled.
O’NEILL, C. J., concurs in the result on the ground that there was no need for a citation of appeal.