Robicheaux v. Albritton

113 So. 2d 87 | La. Ct. App. | 1959

GLADNEY, Judge.

This suit on contract resulted in a judgment in favor of plaintiff for the amount claimed. A devolutive appeal by defendants is attacked in a motion to dismiss, grounded on the facts hereinafter set forth.

Judgment was rendered and signed September 2, Í9S8, and on September IS, 1958, defendants moved for and were granted orders of suspensive, and devolu-tive appeal. The defendants took no action with reference to said orders of appeal but on October 22, 1958, the full amount of the judgment, exclusive of court costs, was paid to plaintiff’s counsel. Defendants then paid to the clerk of court the accrued costs. After this, the defendants, on October 31, 1958, petitioned for a devolutive appeal and accordingly, the court granted an order returnable to this court on December 24, 1958. The appeal bond was duly filed and. the record timely lodged in this court.

The appellee has moved for the dismissal of the appeal on the ground that defendants have voluntarily acquiesced in the judgment. The facts set forth here-inabove are alleged in the motion to dismiss and are not controverted by defendants-appellants. The only objection urged against the motion to dismiss is found in appellants’ brief wherein it is stated the judgment was paid because of threatened execution. There is no evidence in the record to support this, and the motion to dismiss indicates the payment was voluntarily made.

If it were true that defendants paid only for this reason before they could carry out their intent to contest by appeal, payment should have been made in a manner disclosing reservation of the right to appeal and formal opposition to appellee’s motion to dismiss the appeal should have been made. As such objections have not been presented, this court must hold there has been an acquiescence in the judgment by executing it voluntarily. Code of Practice Art. 567; State ex rel. Payne v. Irion, 1927, 163 La. 1019, 113 So. 360; Attaway v. Melton, La.App. 1956, 88 So.2d 417; Carpenter v. Madden, La.App.1957, 94 So.2d 699; Id., 233 La. 840, 98 So.2d 209.

The appeal is dismissed.