168 So. 316 | La. Ct. App. | 1936
We granted a rehearing in this case to consider the contention raised by appellant that appellee had waived the right to file a motion to dismiss the appeal, which contention he raised for the first time in his brief in support of his application for rehearing.
The basis of the contention is the admitted fact that, when the case was first called for trial in this court, an application for continuance was made on behalf of appellee. The argument is that any appearance on behalf of an appellee will constitute a waiver on his part of the right to move for the dismissal of an appeal upon the ground set forth in the motion filed in this proceeding.
Appellant relies upon the following authorities in support of his position: Michel v. Meyer, 27 La.Ann. 173; Jones v. Shreveport, 28 La.Ann. 835; Jacobs v. Yale Bowling, 39 La.Ann. 359, 1 So. 822; Claflin Co. v. Lisso Scheen, 31 La.Ann. 171; Campbell v. Deville,
In the instant case, the only participation by appellee in the appeal was his appearance, through counsel, for the purpose of making a verbal request for a continuance. We are of opinion that such appearance is insufficient to operate as an estoppel by waiver of the right to the dismissal of the appeal.
For the reasons assigned, our former decree is reinstated.
Original decree reinstated.