Ponder v. PechonPonder v. Pechon
This matter is before us on defendants’ ■motion to dismiss plaintiff’s appeal on the ground plaintiff has voluntarily acquiesced in the judgment appealed from, namely, dismissal by the trial court of plaintiff’s action, with prejudice, upon appellant’s own motion in proрer person.
In the brief filed herein by counsel for appellant pursuant to the order of this Court to show cause why this appeal should not be dismissed as moved by counsel for appellees, it is contended on behalf of appellant that the judgment аppealed from is an absolute .nullity and conceded the purpose of this appeal is to have its alleged nullity judiciаlly established and pronounced.
Able counsel for appellant maintains the judgment of the lower court dismissing appellant’s suit is void for the following reasons:
(1) The judgment in question was not signed in open Court as required by LSA-C.C.P. Article 1911, but rather was signed by the trial judge in chambers at Hаmmond, Louisiana, whereas the Twenty-first Judicial District Court, Tangipahoa Parish, sits in Amite, Tangipahoa Parish.
(2) Appellant’s signature to the mоtion to dismiss presented to the trial court was obtained without the knowledge, consent or approval of appellаnt’s attorney of record and without appellant’s full comprehension of the meaning and purport thereof.
(3) Defendants’ motion to dismiss this appeal is predicated upon appellant’s acquiescence in a valid judgment and is consequently without merit inasmuch as the judgment in question is of no legal effect.
We further note the brief entered in this Court on appellant’s behalf reflects the pendency of an action in the trial court to nullify the judgment herein appealed.
Defendants’ contention the judgmеnt in question is unappealable is predicated on the provisions of LSA-C.C.P. Article 2085 which, insofar as concerns the case аt bar, recites that a litigant may not appeal a judgment after having voluntarily and unconditionally acquiesced therein or сonsented thereto.
Where, however, the intent is clear and unmistakable acquiescence precludes the right of appeal. Thus in the early сase of New Orleans City Railroad Company v. Crescent City Railroad Company,
The record as presently сonstituted discloses plaintiff’s petition in the trial court sought the nullity of a certain deed because of alleged error. Defendants filed certain exceptions thereto following which appellant, in proper person, on March 16, 1964, presented to the trial judge at Hammond, Louisiana, a motion to dismiss her action with prejudice which motion, inter alia, recited there was in fact no error in the assailed document and appellant desired to and did thereby ratify same. Said order of dismissal was signed by the lower court on the aforesaid date of its presentation and the following day, March 17, 1964, filed with the Clerk of the Twenty-first Judicial District Court, Amitе, Louisiana.
Appellees acknowledge the order appealed from was not signed in open Court but argue such circumstance is of no moment in view of the provisions of Footnote D appended to LSA-C.C.P. Article 1911 which codifies prior jurisprudenсe to the effect that said codal article (formerly embodied in Code of Practice Article 543) may be waived and judgments mаy be signed in a manner different from that thereto prescribed by stipulation or other consent of the parties.
Insofar as the record before us is concerned it appears that appellant, in proper person, moved the trial court to dismiss her suit with prejudice. In the absence of proof to the contrary, it must be assumed she did so voluntarily, knowingly, intentionally and with full knowledge, undеrstanding and cognizance of the effects thereof. Under such circumstances, and especially in view of the content of her said motion, it cannot be seriously argued that she intended anything other than acquiescence in the judgment of dismissal which she pеrsonally presented to the trial court. Having thus acquiesced in the judgment, she may not appeal therefrom.
The alleged nullity of the judgment in question predicated upon the reputed ob-tention of appellant’s signature thereto without the knowledge, сonsent or approval of her attorney of record and without her full understanding of the purport of her said action, cаnnot be resolved by us in this proceeding. These questions involve issues of law which can only be adjudicated in the light of the facts attеnding presentation of the motion to dismiss in the lower court. Since there is no evidence regarding such issues in the record presently before us, we can render no decision thereon at this juncture.
It is of further significance that the relief herein sought by appellant (nullity of the judgment of dismissal rendered below) is equally available to her in her pending action of nullity provided, of course, the lаw and the evidence supports her contentions. Moreover, plaintiff can in no way be penalized or suffer injury as the result of the dismissal of her present appeal. The judg-
Accordingly, the motion to dismiss this present appeal is granted and this appeal dismissed at appellant’s cost.
Appeal dismissed.