Noel v. McCarthy

117 So. 592, 166 La. 563

• Court: Supreme Court of Louisiana
• Decided: June 4, 1928
• Docket: No. 28990.
• Status: Published

Opinion

ST. PAUL, J.

Timothy McCarthy, defendant above named, appealed from a judgment ad-, verse to him, and duly lodged the transcript in this court.

After the transcript had been filed, the appellant died, leaving as his sole heir his widow Mrs. Timothy McCarthy.

Thereafter plaintiffs, appellees, proceeding in accordance with the rules of this court, obtained an order summoning said heir, widow as above-said, to appear herein and make herself a party to this appeal within 25 days after service thereof upon her; which notice and summons was duly served upon her.

More than 25 days have now elapsed since the service of said notice and summons, but said heir has failed to appear and make herself a party hereto. Wherefore appellees now move to dismiss this appeal.

The proceedings taken and remedy sought are in accordance with rule 17, section 2, of the Rules of this court (136 La. xiii, 67 So. xi).

“Where an appellant dies, pending his appeal to this court the appellee may apply for an order summoning his legal representatives, residing in this state, to appear within 25 days, and in default of such appearance, may move for the dismissal of the appeal or have the cause heard and determined.” Pounds v. Sheridan, 142 La. 248, 76 So. 702.

Decree.

It is therefore ordered that this appeal be dismissed.