Opinion
No. 40797.
January 12, 1953.
APPEAL FROM 24TH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE L. ROBERT RIVARDE, J.
Marcus, Steeg Jones and Nat B. Knight, Jr., New Orleans, for plaintiff-appellant.
Thomas E. Furlow and Alex W. Swords, New Orleans, for defendant-appellee.
As appears from the opinion handed down in the habeas corpus proceedings which this Court had under consideration in State ex rel. Girtman v. Ricketson, 221 La. 691, 60 So.2d 88, the plaintiff had instituted this suit in the district court of Jefferson Parish seeking to regain the custody of her minor child which had been awarded to his father, from whom she was divorced, by the courts of the State of Florida. Her suit for custody having been dismissed on jurisdictional grounds she took and perfected this devolutive appeal, the one defendant now seeks to have dismissed.
It appears further from the opinion in the habeas corpus proceeding which had been brought by the father, that the child was then with its mother, within the jurisdiction of the district court of Jefferson Parish and it was held that that court was vested with jurisdiction to hear testimony regarding the alleged changed circumstances which had occurred since the Florida decree, which, the mother claimed, entitled her to the custody of her child. The case was remanded to the district court for the purpose of receiving whatever testimony might be offered regarding the changed circumstances and conditions, that court having refused to hear such testimony on the ground that it did not have jurisdiction in the matter.
On the remand, the trial judge did hear testimony but while the matter was still pending before him, the father of the child came to Louisiana, took the child and carried it back to Florida. The motion to dismiss the present appeal is based on the proposition that the child is now out of the jurisdiction of the Louisiana courts, and is presently in the State of Florida, with his father, who has again been awarded custody by a decree of a court of that State.
Whatever merit there may or may not be in the reasons on which the motion to dismiss the appeal is based, we take notice of a letter addressed to the Court by counsel for Mrs. Dorothy B. Ricketson, the appellant, in which he states that he will file no brief in support of her position as exceptee in that motion. In view of that information and in the absence of any opposition whatever to dismiss the appeal we conclude that appellant has by her action, acquiesced in the judgment and the appeal should therefore be dismissed.
For the reasons stated it is ordered the devolutive appeal herein taken be and the same is hereby dismissed at the costs of the appellant.