Opinion
No. 30178.
July 17, 1931.
Appeal from Third Judicial District Court, Parish of Lincoln; S.D. Pearce, Judge.
Suit by Mrs. Eva Hennen, tutrix, and others against Virgil A. Hennen and others. From the judgment, the named defendant appeals. On motion of appellant's trustee to dismiss appeal.
Motion denied.
J.W. Elder, of Ruston, for appellant.
Dhu Thompson, of Monroe, for appellees.
On Motion to Dismiss Appeal.
Plaintiffs sued for the annulment of a partition sale of some 400 acres of land, for the recovery of the value of the timber cut and removed therefrom, and for the rents and revenues of the property. The court below annulled the partition sale, but rejected as of nonsuit plaintiffs' demands for the value of the timber cut and for the rents and revenues. Virgil A. Hennen, one of the defendants, appealed suspensively from the judgment, and his appeal was answered by the plaintiffs. Subsequently, the appellant was adjudicated a bankrupt, and his trustee, with the consent of the referee in bankruptcy, filed a motion in this court acquiescing in the judgment appealed from, and praying for the dismissal of the appeal. This motion is opposed by the appellees.
The motion to dismiss must be denied. When an appeal is once lodged in this court, the appellant cannot obtain its dismissal without the consent of the appellee. Code Prac. art. 901; Interdiction of Erichson, 149 La. 895, 90 So. 235; State v. Salmen Brick Lumber Co., 149 La. 968, 90 So. 273.
For the reasons assigned, the motion to dismiss the appeal is denied.