Ponder v. Pechon
| Decision Date | 16 November 1964 |
| Docket Number | No. 6281,6281 |
| Citation | 169 So.2d 671 |
| Parties | Cecelia S. PONDER v. Mary Purser PECHON et al. |
| Court | Court of Appeal of Louisiana — District of US |
J. Lynn Ponder, Amite, for appellant.
Pittman & Matheny, Hammond, for appellees.
Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.
This matter is before us on defendants motion to dismiss plaintiff's appeal on the ground plaintiff has voluntarily acquiesced in the judgment appealed from, namely, dismissal by the trial court of plaintiff's action, with prejudice, upon appellant's own motion in proper person.
In the brief filed herein by counsel for appellant pursuant to the order of this Court to show cause why this appeal should not be dismissed as moved by counsel for, appellees, it is contended on behalf of appellant that the judgment appealed from is an absolute nullity and conceded the purpose of this appeal is to have its alleged nullity judicially established and pronounced.
Able counsel for appellant maintains the judgment of the lower court dismissing appellant's suit is void for the following reasons:
(1) The judgment in question was not signed in open Court as required by LSA-C.C.P. Article 1911, but rather was signed by the trial judge in chambers at Hammond, Louisiana, whereas the Twenty-first Judicial District Court, Tangipahoa Parish, sits in Amite, Tangipahoa Parish.
(2) Appellant's signature to the motion to dismiss presented to the trial court was obtained without the knowledge, consent or approval of appellant's attorney of record and without appellant's full comprehension of the meaning and purport thereof.
(3) Defendants' motion to dismiss this appeal is predicated upon appellant's acquiescence in a valid judgment and is consequently without merit inasmuch as the judgment in question is of no legal effect.
We further note the brief entered in this Court on appellant's behalf reflects the pendency of an action in the trial court to nullify the judgment herein appealed.
Defendants' contention the judgment in question is unappealable is predicated on the provisions of LSA-C.C.P. Article 2085 which, insofar as concerns the case at bar, recites that a litigant may not appeal a judgment after having voluntarily and unconditionally acquiesced therein or consented thereto.
The acquiescence contemplated by the applicable codal provision must be voluntary, unconditional and complete. Meyers, Whitty & Hodge, Inc. v. Popich Marine Construction, Inc., La.App., 143 So.2d 739. Not only must such acquiescence be voluntary and unconditional but it must also be coupled with the intention of abandoning the appeal. Culpepper v. Slater, La.App., 131 So.2d 76. Acquiescence and abandonment are never presumed and must be established by evidence which leaves no doubt regarding appellant's alleged acquiescence considering appeals are favored in law. Rex-Metallic Casket Company v. Gregory, La.App., 104 So.2d 185, and cases therein cited.
Where, however, the intent is clear and unmistakable acquiescence precludes the right of appeal. Thus in the early case of New Orleans City Railroad Company v. Crescent City Railroad Company, 33 La.Ann. 1273, it was held that a litigant who voluntarily takes the record of a suit ordered transferred to the Federal Courts and personally files the record in the Federal Court to which removal has been ordered, thereby acquiesces in such order and may not appeal therefrom.
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...So.2d 557, 559 (La.App. 1 Cir. 1982); Major v. Louisiana Dept. of Highways, 327 So.2d 515, 517 (La.App. 1 Cir.1976); Ponder v. Pechon, 169 So.2d 671 (La.App. 1 Cir. 1964), writ not considered, 247 La. 353, 170 So.2d 868 In Associates Commercial Corp., 415 So.2d at 559, this court noted that......
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