Opinion
No. 32317.
May 29, 1933. Rehearing Denied July 7, 1933.
Appeal from Civil District Court, Parish of Orleans; William H. Byrnes, Jr., Judge.
Proceeding between Nicholas Biri and Mrs. Annie T. Biri. From a judgment ordering the cancellation and erasure of certain recorded notices of lis pendens from the mortgage records, Nicholas Biri appeals.
Appeal dismissed.
Hugh M. Ansley, of New Orleans, for appellant.
Soloman S. Goldman, of New Orleans, for appellee.
This is an appeal from a judgment rendered on a rule nisi. The judgment orders the cancellation and erasure from the mortgage records of the parish of Orleans of two certain recorded notices of lis pendens. There is nothing in the transcript filed in this court except copies of the rule, the judgment thereon, the motion for a devolutive appeal, the order of appeal, the appeal bond, and the clerk's certificate. The allegations in the rule, however, sufficiently show that in proceedings, the nature of which are not disclosed, Mrs. Annie T. Biri caused certain property to be seized and advertised for sale; that pending the proceedings which resulted in the seizure and advertisement of the property for sale, the notices of lis pendens, which were ordered canceled by the judgment appealed from, were recorded; that Mr. Nicholas Biri proceeded by rule to have the order for the seizure and sale of the property recalled and vacated; and that he appealed devolutively from an adverse judgment rendered in that proceeding, on September 15, 1932.
It is shown that the property was advertised to be sold on October 6, 1932, and, as there is nothing in the transcript to the contrary, we must assume that it was sold on that day. We must also take judicial notice of the fact that Mr. Biri's appeal from the judgment rendered September 15, 1932, has been abandoned because the transcript of appeal therefrom was not filed in this court timely and no application was made to this court for an extension of the return day.
Under these circumstances the appellee has moved to dismiss the appeal alleging eleven reasons therefor in her motion to dismiss. Several of said reasons are allegations of facts not disclosed by the record, but two of which are sufficient for the purposes of the motion, viz.:
"That a previous appeal was taken from the judgment rendered September 15, 1932, but that said appeal was abandoned by Appellant's failure to file the transcript on the return day (Nov. 21, 1932) nor within the days of grace.
"That the appeal from the judgment of October 3, 1932, presents only a moot question, the issue of the validity of the seizure having been finally determined by the judgment rendered September 15, 1932, which judgment is final."
For the reasons stated, the appeal is dismissed, at appellant's cost.