
    (98 South. 174)
    No. 26195.
    W. L. PACE PIANO CO. v. LOUISIANA SEEBURG PIANO CO. et al.
    (Oct. 22, 1923.
    Rehearing Denied Dec. 3, 1923.)
    
      (Syllabus by Editorial Staff:)
    
    1. New trial &wkey;>l 17(1)— Motion filed six days after judgment held too late.
    Where judgment was rendered May 15th, a motion for new trial filed May 21st was too late, since, in view of Code Prac. art. 55S, motion for new trial must be filed within three days after rendition of judgment, except in cases -where the judgment is not signed. ■
    2. Appeal and error 110 — Judgment overruling motion for new trial not appealable.
    A judgment overruling a motion for new trial is not appealable. >
    On Application for Rehearing.
    3.Appeal and error &wkey;>9 — Not appeal but action to annul judgment held proper remedy for partner complaining of order appointing receiver for firm.
    Where suit for appointment of a receiver of a partnership was brought against the partnership, and the attorney representing it admitted that the allegations setting forth a cause for the appointment of a receiver were true, a complaining partner’s remedy was not by appeal, but if injustice had been done him, his remedy was by action to .annul the judgment.
    Dawkins and St. Paul, JJ., dissenting.
    Appeal from Civil District Court, Parish of Orleans; Percy Saint, Judge.
    Action by the W. L. Pace Piano Company against the Louisiana Seeburg Piano Company, in which Basil V. Sheffield made himself a defendant and moved for a new trial. From judgment for plaintiff appointing a receiver, and judgment overruling motion for new trial, Sheffield appeals. On motion to dismiss appeal.
    Appeal dismissed.
    F. Rivers Richardson and George Untereiner, both of New Orleans, for appellant.
    John P. Sullivan and David Sessler, both of New Orleans, for appellee W. L. Pace Piano Co.
    Arthur Landry, of New Orleans, for appellee Louisiana Seeburg Piano Co.
    By Division A, composed of O’NIELL, C. J., and ROGERS and BRUNOT, JJ.
   BRUNOT, J.

In this case there is a motion to dismiss an appeal from a judgment appointing a receiver and from a judgment overruling a motion for a new trial.

The judgment appointing a receiver was signed in open court on May 15, 1923. There was no application to the court to vacate this order, but a motion for a new trial was filed on the 21st day of May, 1923. The judgment overruling the motion for a new trial was rendered on the 11th day of June, 1923, and the order of appeal was entered in the minutes of court on the 14th day of June, 1923. It is apparent that the motion for a new trial was filed six days after the rendition of the judgment complained of, and was therefore too late. The rule is that motions for new trial must be filed within 3 days after the rendition of the judgment, except in eases where the judgment is not signed. O. P. art. 558; Succession of Carraby, 23 La. Ann. 110.

Moreover, the motion for a new trial was submitted on the pleadings and argument, and the court’s attention has not been directed to any law conferring upon appellant the right to an appeal from a judgment overruling a motion for a new trial.

It is also apparent that the order of appeal was entered 24 days after the judgment appointing a receiver was signed. It was therefore applied for too late to entitle appellant to an appeal therefrom. Section 4 of Act 159 of 1898; In re Louisiana Driving & Racing Club, 120 La. 268, 45 South. 127.

As these conclusions dispose of the motion to dismiss the appeal, it is unnecessary to state the case with more particularity or to express an opinion upon the other grounds urged in the motion.

For these reasons the motion to dismiss is sustained, and the appeal herein is dismissed at appellant’s cost.

On Application for Rehearing.

By the WHOLE COURT.

PER CURIAM.

It may be conceded that the relation of commercial partners does not, of itself, authorize one partner to confess judgment for another. That is not what occurred in this case. The suit for appointment of-a receiver or liquidator of the partnership was Brought against the partnership; and the attorney representing the partnership, and answering the petition for the partnership, admitted that the allegations setting forth a cause for the appointment of a receiver or liquidator were true. The evidence on which the judgment was based, therefore, appointing the receiver or liquidator, was all one way. Under such circumstances, a complaining partner’s remedy is not by appeal, because, as the record stands, there would be no alternative but to affirm the judgment appealed from. If any injustice has been done to the complaining partner, his remedy is an action to annul the judgment.

Resting our decree on that proposition, and pretermitting the question whether the appeal was governed by Act 159 of 1898, p. 312, which in terms applies only to corporations.

The rehearing is denied.

OVERTON, J., absent.

DAWKINS and ST. PAUL, JJ., dissent.  