Greater New Orleans Homestead Ass'n v. Korner

123 So. 181, 11 La. App. 59, 1929 La. App. LEXIS 597

Opinion

ON MOTION TO DISMISS

WESTERFIELD, J.

Appellee moves to dismiss this appeal upon the ground that the judgment appealed from has been consented to and acquiesced in, citing C. P. 567, and Furex vs. Judge, 33 La. Ann. 927.

The motion to dismiss was filed on the 11th day of May, 1929. The transcript of appeal was filed July 22, 1927, and the case fixed for trial December 15, 1928.

The motion must be denied since it was not filed within three days after the transcript was lodged in this court or the case fixed for trial. Saxon vs. Southwestern Brick Co., 113 La. 637, 37 So. 540.

The exception to the rule mentioned in Key vs. McCall, 122 La. 978, 48 So. 426, is without application here since the acquiescence relied upon in the motion to dismiss, is not alleged to have occurred after the lapse of the three-day period, in which ordinarily the motion should have been filed.

For the reasons assigned the motion to dismiss is denied.