Farrow v. John R. Thompson Co.

135 So. 80, 18 La. App. 404, 1931 La. App. LEXIS 299

• Court: Louisiana Court of Appeal
• Decided: June 8, 1931
• Docket: No. 13,599
• Status: Published

Opinions

ON MOTION TO DISMISS

WESTERFIELD, J.

Appellee moves to dismiss this appeal upon the ground that the transcript was filed too late. The motion was. filed on May 25, 1931, the day on which the case was fixed for argument a second time, it having been re-assigned for argument upon joint request of both counsel.

It is conceded that a motion to dismiss an appeal for failure to file the transcript in time may be made at any time. Jacobs v. Weaver, 167 La. 59, 118 So. 692; O’Reilly Eng. Co., Inc., v. Buckner, 5 La. App. 661. It is also conceded .that the transcript in this case was not filed in time. It is contended, however, that appellee has submitted to the jurisdiction1 of the court and is estopped on that account from urging the dismissal of the cause. The alleged estoppel is based upon the fact that counsel for appellee briefed and argued the case with opposing counsel and thereafter signed a joint motion for the re-argument of the case and also a joint motion to incorporate the testimony of three witnesses in the transcript, which had been inadvertently omitted through error of the stenographer.

We are referred to Jones v. City of Shreveport, 28 La. Ann. 835, and Campbell v. Deville, 163 La. 577, 112 So. 491. In the first of the cited cases it was held that a motion to dismiss the appeal on the ground that the transcript was not filed in time could not be considered because appellee answered the appeal and prayed for amendment of .the judgment without reservation of his right to move to dismiss. In the second case (Campbell v. Deville) the court said:

“When appellant failed to file the transcript timely, this court did not lose all right to pass on the appeal, for the appellee, by this failure, acquired the right to bring the record here and to move for the dismissal of the appeal, or to pray for judgment in the same manner as if the record had been brought up by the appellant. C. P. arts. 590 and 884. The appellee, however, did not elect to pursue either of these courses, but, instead, when the appellant did file the transcript, she availed herself of the appeal by praying for an increase in the judgment, thereby virtually joining in the appeal. This precludes her from now dismissing the appeal. Michel v. Meyer, 27 La. Ann. 173; Jones v. Shreveport, 28 La. Ann. 835; Jacobs v. Yale & Bowling, 39 La. Ann. 359, 1 So. 822; Claflin & Co. v. Lisso & Scheen, 31 La. Ann. 171.”

In the instant ease the appellee did not answer the appeal asking any amendment of the judgment, but, in briefing and arguing the case and in asking fur its re-opening for the purpose of re-argument and for the purpose of admission of testimony omitted in the transcript, without seeking dismissal of the appeal until the day fixed for the second, argument, he must be considered to have waived his right to dismiss the appeal. Perhaps, in so holding, we are going a little beyond the authority of the cited cases, but, since the law favors appeals and abhors forfeitures, the doubt should be resolved in favor of the appeal and the motion to dismiss will, therefore, be denied.