Opinion
No. 14872.
June 10, 1935.
Appeal from Civil District Court, Parish of Orleans; Walter L. Gleason, Judge.
Suit by Cosimo Demasi against Whitney Trust Savings Bank. From a judgment for defendant, plaintiff appeals. On appellee's motion to dismiss appeal.
Motion overruled.
H. S. J.H. Morrison, of New Orleans, for appellant.
Milling, Godchaux, Saal Milling, of New Orleans, for appellee.
This matter comes before us on motion to dismiss the appeal because of alleged acquiescence in the judgment appealed from. The contention seems to be that, although plaintiff's wife, when she testified as a witness, stated that she had not withdrawn any of the fund on deposit to her credit, she has since made affidavit that, as a matter of fact, she did withdraw everything which defendant contends was withdrawn.
We think it advisable not to dismiss the appeal, but to allow the matter to be presented on the merits. If there is new evidence, or if, in fact, there is any evidence which we think should be again considered by the district court, we will, when the matter is presented on the merits, then consider the question of whether the whole case should be remanded to the district court.
For the reasons assigned, it is ordered, adjudged, and decreed that the motion to dismiss the appeal be, and it is, overruled.
Motion to dismiss overruled.