Ratcliff v. Industrial Life Ins. Co. , 163 So. 428 ( 1935 )

This matter comes before us on motion to dismiss the appeal; appellee contending that it should be dismissed, for the reason that no citation of appeal was issued or served. The appeal was requested by motion, and the order was granted as a result of the motion. The record contains nothing on which we can base the conclusion that the motion was not made in open court and, in the absence of any such showing in the record, we will assume that it was made in open court. See Richardson v. Caloavello,3 La. App. 535; Bishop-Wyatt Co. v. Latin-American Life Casualty Ins. Co., Inc., 12 La. App. 58, 125 So. 167; James v. City of New Orleans,14 La. App. 311, 125 So. 464; Marsh v. Avegno, 3 La. App. 294,295; Swain v. Globe Lumber Co., Ltd., 144 La. 207, 80 So. 256,257.

If the appeal was granted on motion in open court, as we must assume that it was under the authorities above set forth, there was no necessity that a citation issue or be served. See the above authorities, particularly Swain v. Globe Lumber Co., supra, in which the court said: "The appeal having been granted in open court, no further citation was necessary."

The motion to dismiss the appeal is denied.