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Brumfield v. Varner

Supreme Court of Louisiana
Jun 1, 1990
561 So. 2d 1376 (La. 1990)

Summary

filing of order of transfer and motion to consolidate constituted formal action on record and clearly was "step in its prosecution or defense"

Summary of this case from Wilson v. Freeland

Opinion

No. 90-C-0806.

June 1, 1990.

APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA.


Writ granted. Judgments of the district court and court of appeal, 557 So.2d 479, are reversed. The motion to have plaintiff's petition dismissed as abandoned under La.C.C.P. art. 561 is denied. The case is remanded to the district court for further proceedings.

Within the requisite five year period, counsel for plaintiffs in Brumfield v. Varner, assigned to Division D in the 24th JDC of Jefferson Parish, who was also counsel for the named plaintiffs in Ruel v. Burnett, assigned to Division K in the same 24th JDC, filed two documents with the clerk of court of the 24th JDC. The first document, bearing the docket no. 289-040, (Brumfield) and the division, "D", was an order of transfer designed for the signatures of the judges of Divisions D and K approving and accepting the transfer of Brumfield to Division K. That order was filed on May 9, 1989, but not signed, and was apparently placed in the jacket of the Ruel case.

Simultaneously on May 9, 1989, counsel filed in the Ruel case, No. 247-342 of Division K, a motion to consolidate Ruel with Brumfield, no. 289-040 of Division "D". The order was signed by the judge of Division "K" on July 24, 1989. The coincident filing of the order of transfer bearing the Brumfield docket number, even if placed by the clerk of court in the Ruel jacket, and the motion to consolidate the Brumfield and Ruel cases, bearing the Ruel docket number, constituted formal action on the record and clearly was a "step in its prosecution or defense" in the Brumfield matter in the 24th Judicial District Court. La.C.C.P. art. 561; Chevron Oil Co. v. Triangle, 436 So.2d 530, 532 (La. 1983). Both of these documents were filed on May 9, 1989, less than five years after earlier action in this case.

The record, for our purposes, must consist of papers, filed with the clerk of court, bearing that docket number regardless of where that document is placed once filed.

WATSON, J., dissents, would deny the writ.


Summaries of

Brumfield v. Varner

Supreme Court of Louisiana
Jun 1, 1990
561 So. 2d 1376 (La. 1990)

filing of order of transfer and motion to consolidate constituted formal action on record and clearly was "step in its prosecution or defense"

Summary of this case from Wilson v. Freeland

filing of order of transfer and motion to consolidate constituted formal action on record and clearly was "step in its prosecution or defense"

Summary of this case from Guidry v. Pine Hills Country Club, Inc.
Case details for

Brumfield v. Varner

Case Details

Full title:LORRAINE CUCCIA BRUMFIELD, CAROLYN CUCCIA MASSON, JACOB JOSEPH CUCCIA…

Court:Supreme Court of Louisiana

Date published: Jun 1, 1990

Citations

561 So. 2d 1376 (La. 1990)

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