Opinion
No. 20612.
June 25, 1956.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 285-829, DIVISION "E", STATE OF LOUISIANA, HONORABLE PAUL E. CHASEZ, J.
Harry R. Cabral, Harry R. Cabral, Jr., and Lewis R. Graham, New Orleans, for defendants and appellants.
Henry B. Curtis, City Atty., and Luther E. Hall, Jr., Asst. City Atty., New Orleans, for plaintiff and appellee.
Defendants appealed suspensively and devolutively from the issuance of a preliminary injunction against them to the Supreme Court of Louisiana, which court transferred the appeal to us for the reason that it had no jurisdiction. See 227 La. 770, 80 So.2d 402. The matter was argued before us on May 9, 1956, and due to the fact that one judge was absent, we have ordered the matter set down for reargument. The City of New Orleans now moves to dismiss the suspensive appeal on the ground that there never was any notice given to it of the appellants' intention to apply for the suspensive appeal, and there was no hearing had upon the application for same as provided by LSA-R.S. 13:4070.
The motion cannot prevail. This court is not concerned with whether there was such notice or a hearing upon the application for the appeal. These were merely formalities in connection with the taking of the appeal, and whereas the motion to dismiss was not filed within three days after the appeal was lodged in this court, we cannot consider it. Code Prac. art. 886.
Motion denied.