Smith v. Division of Administration

358 So. 2d 1291, 1978 La. App. LEXIS 3443

• Court: Louisiana Court of Appeal
• Decided: January 23, 1978
• Docket: No. 11687
• Status: Published

Opinion

PONDER, Judge.

MOTION TO DISMISS

Appellant and appellee filed a motion to dismiss based on the allegation that a compromise had been effected. The court took the motion under advisement. The statute requires the consent of all parties for a voluntary dismissal.¹ Our rules require a joint motion signed by all interested parties.²

LSA-R.S. 13:3416 makes the director of personnel of any department of state civil service an indispensable party in any judicial proceeding wherein relief is sought against any decision of the civil service commission with all the rights and remedies of parties in litigation. LSA-R.S. 13:3417 allows the director of personnel not an indispensable party on his own motion to become a party with all the rights afforded to parties in litigation. A motion to intervene filed by the director was approved on August 18, 1977. This certainly made the director a party within the meaning of the statute and rule. The motion to dismiss was not signed by, and was in fact, opposed by the director. The motion to dismiss is denied.

MERITS

Appellant appeals from the dismissal of his appeal by the Civil Service Commission. The issue is the propriety of that dismissal for lack of jurisdiction. We affirm.

In re Division of Administration, 343 So.2d 277 (La.App. 1st Cir., 1977) held that the Division of Administration was a part of the governor’s office within the meaning of the Constitution ³ and the employees of the Division were therefore in the unclassified service. The Supreme Court refused writs, La., 345 So.2d 504 (1977) on the basis of “No error of law . . . ”.

Although two members of the present panel dissented in the In re Division of Administration case, we feel bound to follow that decision, especially since the points made by both appellant and intervenor in the present case were made and rejected in the earlier one.

The dismissal of appellant’s appeal by the Civil Service Commission is therefore affirmed at appellant’s costs.

AFFIRMED.

1 . LSA-C.C.P. Art. 2162

“An appeal can be dismissed at any time by consent of all parties, or for lack of jurisdiction of the appellate court, or because there is no right to appeal, or if, under the rules of the appellate court, the appeal has been abandoned.

* * * * * * ’>

2 . Rule VII — Section 3

“Any appeal may be summarily dismissed or remanded by order of the court where there has. been a joint motion filed by all interested parties or their attorneys, which shall set forth the reason for such action and which shall be supported by appropriate affidavits that the facts alleged therein are true and correct.

“In the absence of a timely answer to the appeal or other formal action to amend or modify the judgment appealed, the appellant alone may, by his formal motion to dismiss, on leave of the court, forthwith abandon his appeal and obtain its dismissal.”

3 .Art. 10, § 2

“(B) Unclassified Service. The unclassified service shall include the following officers and employees in the state and city civil service:

***** *

“(10) employees, deputies, and officers of the legislature and of the offices of the governor, lieutenant governor, attorney general, each mayor and city attorney, of police juries, school boards, assessors, and of all officers provided for in Article V of this constitution except the offices of clerk of the municipal and traffic courts in New Orleans;

* * * * * * ’»