Mills v. Adams

Full title: NEWT V. MILLS, PLAINTIFF-APPELLANT, v. JERRY A. ADAMS, DEFENDANT-APPELLEE

Court: Court of Appeal of Louisiana, Second Circuit

Date published: Jan 20, 1978

352 So. 2d 287 (La. Ct. App. 1978)

Opinion

No. 13371.

October 31, 1977. En Banc. Rehearing Denied December 5, 1977. Writ Granted January 20, 1978.

APPEAL FROM SECOND JUDICIAL DISTRICT COURT, PARISH OF JACKSON, STATE OF LOUISIANA, HONORABLE DAVID T. CALDWELL, J.

Emmons, Henry Reeves by Joseph A. Reeves, Jr., Jonesboro, for plaintiff-appellant.

Baker, Culpepper Brunson by James R. Hatch, Jonesboro, for defendant-appellee.

Before HALL, MARVIN and JONES, JJ.

MARVIN, Judge.

An appellant may negate the presumption of abandonment of an appeal when he appears or otherwise informs the court before or at the time the appeal is called for argument that he intends not to abandon the appeal and that he will file a brief. Walker v. Jones, 253 La. 908, 221 So.2d 44 (1969).

Here, the appellant neither appeared nor filed a brief when the appeal was called for argument on September 27, 1977, and the appeal was dismissed. Rule VII, § 5(b), Uniform Rules — Court of Appeal. Six days later, a brief of the appellant was received by this court, having been postmarked September 30, 1977.

The filing of a brief by the appellant after the appeal is dismissed does not negate the presumption under Rule VII unless before the case is called for argument appellant notifies the court that a brief will be filed forthwith.