Opinion
No. 19220.
March 14, 1949. Rehearing Denied April 11, 1949.
Appeal from Civil District Court, Parish of Orleans; Walter B. Hamlin, Judge.
Action by Mary Schaefer Bonnelucq against Louis H. Bernard for treble damages for failure to refund an overcharge as directed by the Office of Price Administration. From an adverse decision, plaintiff appeals, and defendant moves to dismiss the appeal.
Motion to dismiss denied.
See also 33 So.2d 433.
Phil Trice, of New Orleans, for plaintiff and appellant.
Marion Seeber and Delvaille H. Theard, both of New Orleans, for defendant and appellee.
This appeal was taken by motion in open court, and the transcript was lodged with us one day prior to February 1, 1949, which was the return date. On February 9, 1949, appellee moved for a dismissal of the appeal upon the ground that appellant failed to comply with the provisions of Act No. 217 of 1944. It is appellee's contention that a copy of the motion for the appeal should have been served on his counsel of record in accordance with the provisions of sections 2, 3, and 4 of said act, and that the original motion should have been accompanied by a certificate showing that a copy thereof had been so served.
Regardless of whatever merit, if any, the motion to dismiss might have had if timely filed, clearly it comes too late and cannot be considered by us.
A motion to dismiss an appeal because of a defect, informality, or irregularity which is not jurisdictional, and which does not strike at the foundation of the right of appeal, must be filed within three days after the return date. C.P. art. 886; Dart's La.Dig., Appeal, par. 526.
The motion to dismiss is denied.
Motion denied.