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Carpenter v. Madden

94 So. 2d 699 (La. Ct. App. 1957)
Carpenter v. Madden

5 Citing cases

  1. Scott v. Hunt Oil Company

    147 So. 2d 405 (La. Ct. App. 1962)

    However, facts set out in a motion to dismiss an appeal may be taken as admitted where the motion is submitted without dissent from the opposing party. Carpenter v. Madden, 233 La. 840, 98 So.2d 209; La.App.2d Cir., 1957, 94 So.2d 699 (writ granted); State ex rel. Payne v. Irion, 163 La. 1019, 113 So. 360; Hart v. Hardgrave, La.App.2d Cir., 1958, 103 So.2d 910; Attaway v. Melton, La.App.2d Cir., 1956, 88 So.2d 417. Moreover, we may point out that the appeal was not timely taken.

  2. RDM Corp. v. Macaluso

    134 So. 2d 127 (La. Ct. App. 1961)   Cited 8 times

    See Wilson v. Wilson, 205 La. 196, 203, 17 So.2d 249, 251. An appellate court is at liberty to assume that the facts set out in a motion to dismiss are admitted if the motion has been submitted by opposing counsel without denial of the facts alleged therein. Carpenter v. Madden, La. App., 94 So.2d 699; Attaway v. Melton, La. App., 88 So.2d 417; State ex rel. Payne v. Irion, 163 La. 1019, 113 So. 360. We therefore accept as a fact that the sale herein sought to be enjoined has already taken place. Under such circumstances, the sole question presented by this appeal being whether the trial judge properly refused to grant the preliminary injunction, the appeal must be dismissed. Unity Industrial Life Ins. Co. v. DeJoie, 197 La. 38, 200 So. 813; Bank of La Fourche v. Barrios, 167 La. 215, 118 So. 893.

  3. Jones v. Jones

    119 So. 2d 643 (La. Ct. App. 1960)   Cited 2 times

    The motion to dismiss is accompanied by a photostat of a letter of appellant to this effect addressed to her attorneys of record and the Clerk of Court of Caddo Parish, Louisiana. The averments of fact contained in the motion to dismiss will be accepted as true and the motion sustained. See Rule No. 10 of this court; State ex rel. Payne v. Irion, 1927, 163 La. 1019, 113 So. 360; Attaway v. Melton, La.App. 1956, 88 So.2d 417, appeal transferred 229 La. 113, 85 So.2d 50; Carpenter v. Madden, La.App. 1957, 94 So.2d 699, affirmed 233 La. 840, 98 So.2d 209; and Hart v. Hardgrave, La.App. 1958, 103 So.2d 910. The appeal is dismissed at appellant's cost.

  4. Robicheaux v. Albritton

    113 So. 2d 87 (La. Ct. App. 1959)   Cited 2 times

    As such objections have not been presented, this court must hold there has been an acquiescence in the judgment by executing it voluntarily. Code of Practice Art. 567; State ex rel. Payne v. Irion, 1927, 163 La. 1019, 113 So. 360; Attaway v. Melton, La.App. 1956, 88 So.2d 417; Carpenter v. Madden, La.App. 1957, 94 So.2d 699; Id., 233 La. 840, 98 So.2d 209. The appeal is dismissed.

  5. Hart v. Hardgrave

    103 So. 2d 910 (La. Ct. App. 1958)   Cited 17 times
    In Hart v. Hardgrave, La.App., 103 So.2d 910, it was recognized that "cause of action" is not synonymous with "automobile collision."

    First, it is to be observed that the factual allegations which are the basis of defendants' motion are not controverted and therefore must be accepted as true. Carpenter v. Madden, 233 La. 840, 98 So.2d 209; Carpenter v. Madden, La. App., 94 So.2d 699; Attaway v. Melton, La. App., 88 So.2d 417; State ex rel. Payne v. Irion, 163 La. 1019, 113 So. 360. Defendant's motion, which is in effect a plea of res judicata based upon a settlement in accord and satisfaction of a judgment with one of these plaintiffs, could not, under any possible theory, be considered as binding upon the other plaintiffs in this action, who were not parties to the suit in the Federal Court.