Louisiana Power & Light Co. v. Becker

123 So. 193, 11 La. App. 195, 1929 La. App. LEXIS 606

• Court: Louisiana Court of Appeal
• Decided: June 28, 1929
• Docket: No. 498
• Status: Published

Opinion

LECHE, J.

Plaintiff sued defendant to recover $28, with interest and costs.

Defendant reconvened for $1,167. The district court rendered judgment in favor of plaintiff, as prayed for, and rejected defendant’s reconventional demand.

The judgment was read and signed on January 9, 1929, A writ of fieri facias was issued in execution of the judgment on February 12, 1929, and was satisfied by defendant’s check on the same day, February 12, 1929. On the check, the following words were written: “Paid under protest, expect to appeal.”

Defendant, on February 18, 1929, obtained an order for, and perfected, a devolutive appeal to this court. Plaintiff moves to dismiss the appeal on the ground of acquiescence.

It is evident from a recital of the facts that there was no acquiescence, and that defendant did not voluntarily comply with the judgment, but paid under compulsion to the sheriff, who held the writ of fieri facias. Such payment does not debar defendant from obtaining and prosecuting a devolutive appeal. Louisiana Land & Immigration Co. vs. Murff, 139 La. 808, 72 So. 284.

On the merits of the case, we have no alternative but to affirm the judgment of the district court. The record contains no note of evidence, no statement of facts, and no evidence.

The presumption is that the trial judge acted on proper and sufficient evidence.

The judgment appealed from is affirmed.