Saxon v. Southwestern Brick & Tile Mfg. Co.

37 So. 540, 113 La. 637, 1904 La. LEXIS 684

• Court: Supreme Court of Louisiana
• Decided: June 20, 1904
• Docket: No. 15,269
• Status: Published

Opinions

PROVOSTY, J.

This is an appeal from an order appointing a receiver. The appellants ■aver themselves to be stockholders and creditors of the defendant corporation.

The transcript was filed in this court on May 23, 1904. On May 26th all parties to the appeal joined in a motion to place the case on the preference docket. On May 27th a motion to dismiss was filed, based on the alleged ground that one of the appellants was estopped from appealing, he having acquiesced in the resolution of the board of directors of the defendant corporation for the placing of the company in the hands of a receiver, and that the other appellant should not be considered a party to the appeal, because he has failed to make the affidavit required by section 4, Act No. 159, p. 314, Acts 1898, to be made in such eases. On the 31st of May an additional motion to dismiss .was filed, on the ground that no appeal lies from an order appointing a receiver in a case of this character, as the proper remedy is by petition to vacate the appointment of the receiver; and on the further ground that the motion for the appeal does not disclose wherein appellants are aggrieved by the order appealed from.

These motions to dismiss were filed more than three days after the filing of the transcript, and therefore too late. Code Prac art. 886; Webb v. Keller, 39 La. Ann. 55, 1 South. 423; Holbrook v. Holbrook, 32 La. Ann. 13; De St. Romes v. Press Co., 31 La. Ann. 224; Bienvenu v. Ins. Co., 33 La. Ann. 209; West v. Davis, 34 La. Ann. 357.

Furthermore, motion to dismiss will not lie when appellee has fixed the case for trial. Creevy v. Breedlove, 12 La. Ann. 745; Golden v. Board, 34 La. Ann. 354.

The motion to dismiss is denied.