#### Hilbert LOEB v. Marian Slipman LOEB, his wife.

No. 4679.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 6, 1971.

*392David H. Seelig, New Orleans, for plaintiff-appellant.

Tucker & Schonekas, Russell J. Schonekas, New Orleans, for defendant-appellee.

Before REGAN, REDMANN and STOULIG, JJ.

REGAN, Judge.

This is an appeal from a judgment said to have been rendered on January 20, 1971, effecting the custody rights of the litigants over the children born of their marriage. It is conceded by both counsel that no written judgment was either signed or filed in the record herein. Consequently, Marian Slipman Loeb, the appellee, has moved in this court to dismiss the appeal.

It is well settled in our jurisprudence that there can be no appeal from such judgments when it is not considered rendered and appealable until signed by the judge hearing the matter. In Tolbert v. Thomas,1 the court dismissed an appeal *ex mero motil*for this reason and stated:

> “It is well settled that an appeal may be taken only from a signed judgment inasmuch as a definitive judgment is not considered rendered and is therefore not appealable until it has been signed by the judge who announced the decision. LSA-C.C.P. Article 1911; Brown v. Boudreaux, 207 La. 233, 21 So.2d 44; Mayfair Sales, Incorporated v. Sams, La. App., 154 So.2d 616; Southern Bell Telephone and Telegraph Company v. Ace Freight Lines, Inc., et al., 155 So.2d 107; Davis v. Underwriters at Lloyd’s of London, La.App., 142 So.2d 803.”

In brief and in oral argument, counsel for the appellant asserts several denials of his client’s procedural rights in violation of the Louisiana Code of Civil Procedure and the rules of the Civil District Court for the Parish of Orleans. Since this case must be remanded in any event, the lower court is directed to hear any appropriate argument concerning any denial of procedural or other right, and to render a judgment consistent with law and the rationale of this opinion.

For the foregoing reasons, the appeal hereof is dismissed and the matter is remanded to the lower court for such additional proceedings, as the nature of the case may require. The appellant, Hilbert Loeb, is to pay all costs of this appeal.

Appeal dismissed; remanded.

1

. 173 So.2d 391 (1905).

REDMANN, Judge

(dissenting).

This appeal should be construed as an appeal from a judgment of December 30, 1970, although the motion for appeal (and appeal bond) described the judgment appealed from as one of January 20, 1971, the date on which a motion for new trial was denied by written and signed refusal.

The facts here are not identical to Fruehauf Trailer Co. v. Baillio, 252 La. 181, 210 So.2d 312 (1968), but in my opinion dismissal of this appeal is contrary to that decision and Kirkeby-Natus Corp. v. Campbell, 250 La. 868, 199 So.2d 904 (1967).

The sole difference in fact here is that, under very confusing procedural circumstances,1 appellant thought there was a judgment rendered on January 20 in addition to the written refusal of (an untimely application for) new trial on that date. But the matter that brought appellant to court in the first place and has him seeking *393appeal in the second place was in fact governed by the December 30 judgment, from which his January 20 appeal was timely.

In my opinion Fruehauf and Kirkeby-Natus *2***oblige us to consider this appeal as an appeal from the December 30 judgment.

1

. Two opposing rules were set for the same day, then continued by the court, then the continuance rescinded and trial ordered (as to one?) on a few hours notice (over many objections), judgment rendered December 30 not expressly (but prob*393ably impliedly) ruling on appellant’s permanent custody request, rule somehow reset or continued (??) to January 20, at which time appellant believed a judgment was rendered on the custody, but in fact none was rendered, apparently on the theory the December 30 judgment after full hearing had settled the matter.

2

. See also Smith v. Hartford Acc. and Indem. Co., 254 La. 341, 223 So.2d 826 (1969).