No. 86 CA 1581 | La. Ct. App. | Mar 4, 1987
This matter is before the court on plaintiff-appellee’s motion to dismiss the appeal on the basis that it was prematurely taken due to a pending motion for a new trial.
The record establishes the following facts. After obtaining a final judgment against defendant on the merits, plaintiff filed a motion seeking to satisfy the judgment against the surety on the suspensive appeal bond. The trial court orally granted plaintiff’s motion on September 26, 1986. On October 10, 1986, the surety filed a petition and order for appeal. On October 13, 1986, the trial court signed a written judgment in plaintiff’s favor. On October 21, 1986, plaintiff filed a motion for new trial which was set for argument on December 12, 1986. The record was lodged on December 9, 1986.
On December 23, 1986, appellant filed a “Concurrence in Motion to Dismiss Appeal” which indicates a new trial was granted by the trial court on December 17, 1986. Under these circumstances, the appeal should be dismissed either on the basis that it is moot or on the basis that both sides have consented to the dismissal. LSA-C.C.P. art. 2162.
Appellant asks that the judgment of dismissal reserve its right to appeal from the “original judgment and/or any new judgment which may be rendered by the trial court.” We will not reserve appellant’s right to appeal from the original judgment since that judgment is now moot due to the trial court’s granting of a new trial. As to any future judgments, there is no need to reserve appellant’s rights to appeal since this dismissal pertains only to the appeal from the judgment signed on October 13, 1986.
For the above and foregoing reasons the motion is granted and the appeal is dismissed.
MOTION GRANTED.