Kanuk v. Pohlmann
| Decision Date | 13 October 1976 |
| Docket Number | No. 7598,7598 |
| Citation | 338 So.2d 757 |
| Parties | Donald W. KANUK and Mrs. Lastenia Viguez Kanuk et al. v. Melvin H. POHLMANN and Robert Conn. |
| Court | Court of Appeal of Louisiana — District of US |
Nelson, Nelson & Lombard, Ltd., Irving H. Koch, New Orleans, for plaintiffs-appellants.
Lenfant & Villere, Plauche F. Villere, Jr., New Orleans, for defendant-appellee Melvin Pohlmann.
John J. McCann and Raoul P. Sere, John J. McCann, New Orleans, for defendant-appellee Robert Conn.
Before LEMMON, GULOTTA and BEER, JJ.
The principal issue in plaintiffs' appeal from a judgment dismissing their suit under C.C.P. art. 561 is whether the filing of an unsigned motion to fix for trial on the merits constituted a step in the prosecution of the case so as to prevent dismissal for abandonment.
Between April 8, 1970 (when plaintiffs filed an amended petition) and August 12, 1975 (when defendants moved to dismiss the case for want of prosecution), the parties admittedly took no step in the prosecution or defense of the case other than by filing on March 26, 1975 the motion to fix for trial on the the merits. The motion was presented on a blank form supplied by the district court. The name and address of one of the plaintiffs (who is also an attorney) were handrinted in the appropriate blank spaces on the form, but the motion was not signed by plaintiffs or their counsel.
The purpose of the C.C.P. art. 561 is to dismiss actions which have been abandoned, and the article provides for dismissal of those cases in which a plaintiff's inaction during a legislatively ordanied period has clearly demonstrated his abandonment of the case . The article was not intended, however, to dismiss those cases in which a plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon the action. The filing of the technically defective motion in this case was a step toward moving the suit to judgment and militated against any intention to abandon the action.
Furthermore, the purpose of C.C.P. art. 863's requirement of signed pleadings is to place the responsibility for truthful and accurate allegations upon the attorney so as to subject him to disciplinary action for willful violation. (See C.C.P. art. 864, which also provides sanctions for scandalous or indecent matter in pleadings.) See also Berglund v. F. W. Woolworth Co., 236 So.2d 266 (La.App.4th Cir. 1970)....
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