From Casetext: Smarter Legal Research

Kelly v. Elliott

Court of Appeal of Louisiana, Second Circuit
Jun 18, 1941
3 So. 2d 295 (La. Ct. App. 1941)

Opinion

No. 6286.

June 18, 1941.

Appeal from Tenth Judicial District Court, Parish of Natchitoches; James W. Jones, Jr., Judge.

Action by Mrs. E.L. Kelly against Lee Elliott, to recover on an open account of sales of dairy products to the defendant. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

Julian E. Bailes, of Natchitoches, for appellant.

C.B. McClung, of Natchitoches, for appellee.


Plaintiff sued upon an open account of sales of dairy products to defendant during the year 1939 and the early part of 1940. Defendant interposed exceptions of no cause of action and want of capacity of plaintiff to institute and prosecute suit. These exceptions were overruled. Answer was then filed. The exceptions were again urged. Liability for payment of the account is denied. Defendant affirmatively averred that while the account once existed it had been novated by the execution by him of a series of promissory notes. After trial on the merits, judgment for plaintiff was rendered for the amount sued for from which defendant appealed.

In this court appellant has made no appearance; no brief has been filed by him or on his behalf. This attitude warrants us in assuming that the appeal has been abandoned. In such circumstances it is the rule of this court to dismiss an appeal as having been abandoned. Appeal in this case was obviously taken for delay but we are not asked to inflict the statutory penalty authorized in such cases. However, we have read the record and find that the judgment is well supported by the evidence adduced and for this reason we have decided to affirm the judgment appealed from rather than dismiss the appeal; and for these reasons, said judgment is hereby affirmed with court costs.


Summaries of

Kelly v. Elliott

Court of Appeal of Louisiana, Second Circuit
Jun 18, 1941
3 So. 2d 295 (La. Ct. App. 1941)
Case details for

Kelly v. Elliott

Case Details

Full title:KELLY v. ELLIOTT

Court:Court of Appeal of Louisiana, Second Circuit

Date published: Jun 18, 1941

Citations

3 So. 2d 295 (La. Ct. App. 1941)

Citing Cases

Grand Lodge of Louisiana v. Natchitoches Lodge

's action was instituted merely for the purpose of clearing title and because of the fact that he had no…