Opinion
No. 16346.
May 4, 1936.
Appeal from First City Court of New Orleans; W. Alex. Bahns, Judge.
Suit by Anthony Vezich against Nicholas R. Macalusa, operating and doing business under the name and style of the Empire Dry Cleaning Service. Judgment for defendant, and plaintiff appeals. On motion to dismiss the appeal.
Appeal dismissed.
Wm. Donnaud, of New Orleans, for appellant.
Jos. F. Monie, of New Orleans, for appellee.
This matter came on to be heard at the same time as Lawrence Vallon v. Morris Cleaners Dyers, Inc. (La.App.) 167 So. 887, decided this day, and the cases were consolidated for argument. The facts with reference to the failure to serve the appellee with citation of appeal are identical with those in the Vallon Case, except it is claimed in this case that the appellee has waived his right to move to dismiss the appeal because he voluntarily appeared in this court.
The transcript was filed here on January 4, 1936, and the case was set for trial on March 3, 1936. On the day of trial appellee appeared and filed a motion to dismiss.
Appellant contends that under article 886 of the Code of Practice a motion to dismiss the appeal shall be made within three days from the date of the filing of the record in this court. The point is without merit because article 886, C. P., provides in substance that the appellee shall "within three days after the time allowed him for appearance by the citation of appeal, file with the clerk his answer in writing to such appeal." In the instant case the appellee was not served with the citation of appeal, and, therefore, the provisions of the Code of Practice are without application.
For the reasons herein assigned and for the reasons given in Lawrence Vallon v. Morris Cleaners Dyers, Inc. (La.App.) 167 So. 887, this day decided, the motion to dismiss the appeal is sustained and the appeal ordered dismissed.
Appeal dismissed.