Interdiction of Erichson

90 So. 235, 149 La. 895, 1921 La. LEXIS 1519

• Court: Supreme Court of Louisiana
• Decided: October 31, 1921
• Docket: No. 24763
• Status: Published

Opinions

On Motion to Dismiss.

LAND, J.

The plaintiff instituted suit in the civil district court of the parish of Orleans, for the purpose of obtaining a judgment interdicting the defendant. The Interstate Trust & Banking Company was appointed as temporary administrator of the defendant’s estate. On the same day the petition for interdiction was filed by Paul W. Maloney, Esq., he withdrew from the case as plaintiff’s attorney, and was appointed by the fcourf, as attorney for the Interstate Trust & Banking Company, administrator pro tempore. The judgment of the lower court rejected plaintiff’s suit at her cost, and recalled and set aside the order appointing the Interstate Trust & Banking Company, provisional administrator. The plaintiff and the banking company have appealed from the decision of the lower court to this court, and Paul W. Maloney, Esq., appearing here as the attorney for plaintiff, and for the said banking company, appellants, has moved to dismiss these appeals. This is opposed by counsel for appellee, on the ground that the attorney, who makes for appellants the motion to dismiss, has no authority to do so, since he retired from the case as their counsel in the lower court; and, second, that under article 901 of the Code of Practice, an appellant cannot withdraw an appeal without the consent of the appellee, when once it has been lodged in the Supreme Court.

[1,2] As an attorney is presumed to have authority until proof of the contrary, the first of these grounds is untenable, since the attorney may have re-entered the case, and the fact of the attorney having retired as counsel for tlie plaintiff is no evidence of his not being counsel for the administrator pro tempore. The second ground is good, and the motions to dismiss are therefore denied.