
    NO. 8432
    COURT OF APPEAL PARISH OF ORLEANS.
    MARY A. DUMAS versus E. B. VASQUES
   Dinkelspiel; J.

Plaintiff moves to dismiss this appeal relying mainly upon the fact "was a motion for a new trial filed within the time allowed by law so as to suspend the time in which defendant must apply for a suspensive appeal?" And relies on the decision &sn sic by this Court in Lemann et ais vs. Herrero, 13 Orleans Appeals p. 74, where the Court held "the delay for a new trial runs from the rendition of the judgment and not from the date when the judgment is notified. The requirement as to notioe has to do solely with the execution of the judgment and the delays for appeal.

That is undoubtedly true in so far, as judgment as in this case ooming from the District Court-, but in Justices' Courts or appeals from the First City court, the law is different and we quote from the Aot of the Legislature Ho. 314 of 1914, wherein it states:

"Tha.t no appeal from the judgment before a Justice of the Peaoe shall stay execution unless the said appeal be taken within ten days after the judgment, if it has been pronounced in the presence of the parties or when the party oast was present or represented by counsel at the trial or within ten days after the notification of it if it has been rendered on default of one of the parties provided■that no notification shall be necessary if personal service was had on the defendant a.nd in oase of appeal the appellant shall execute hie bond, eto. etc."

Revised Statutes 3088; C. P. 1139.

Subsequently by Aot Ho. 97 of the Legislature of 1918 virtually the same provisions were reenacted and further the ■doctrine of appeals from Justices of the Peaoe is decided in the 139 La. p. 633, Meyer vs. Tasques, et als, wherein the syllabus reals:

"The delay of ten days in which a suspensive appeal may be taken from the judgment of a Justice of the Peace or from a judgment of a City Court in New Orleans, when the party oast was present or represented by oouneel at the trial, begins to run from the day of the rendition of such judgment and that notwithstanding that the judgment may hays been rendered in the absenoe of suoh party and that due notioe thereof ¡qay have been served on him.

State ex rel Thomas Henderson vs. John McCrea, 40 Ann. page 20, the above dootrine was reaffirmed and it was there held:

"It is only when a judgment has been rendered by a Justice of the Peace in the presence of the parties that notification pf it oan be dispensed with. And defendant is always in time to appeal for a new trial when the judgment was not rendered in his presence and he was not notified,"

"liben a case is tried March 16th and the judgment rendered on March 19th, out of the presence of the parties, the delay for appeal commences only from the date the notioe of judgment is served.

Por the reasons assigned the motion to dismiss denied,

Motion to dismiss denied.  