Heirs of Burney v. Ludeling

41 La. Ann. 627

• Court: Supreme Court of Louisiana
• Decided: June 15, 1889
• Docket: No. 1,151
• Status: Published

Opinions

I.

On Motion to Dismiss.

The opinion of the Court was delivered by

Watkins, J.

The defendants request that the plaintiffs’ appeal be dismissed on the ground “ that the judgment appealed from was rendered at the request and with the consent of the plaintiffs,” and as justifying it, they cite us to an entry that appears in the minutes of the lower court.

It is as follows, viz : “On motion of plaintiffs' counsel the judgment heretofore rendered, dismissing this suit, is set aside, and the court now renders a judgment dismissing the suit. See decree.’'

The decree referred to is in the following form, viz.: “ In this cause it is ordered that the judgment rendered sustaining the exceptions filed by defendants, with leave to amend, is set aside, and it is now ordered, adjudged and decreed that said exceptions be sustained, and plaintiffs’ suit dismissed at their cost.”

This judgment bears the same date as that of the entry on the minutes quoted. At the same time the appeal was granted in open court.

These facts, taken chronologically, clearly indicate that, while it was upon the motion of plaintiffs’ counsel that the judgment first rendered was set aside, it was upon the order of the court that the suit was dismissed. Wootan vs. Leblanc, 32 Ann. 692; Chaffe vs. Hayner, 31 Ann. 594.

The motion is denied.

II.