Typhoon Fan Co. v. Pilsbury

On Motion to Dismiss. OYERiTON, J. Plaintiff has appealed from a judgment sustaining a. plea of res adjudicata, and defendant has moved to dismiss, the appeal. The grounds urged for dismissing the appeal may be summed up as follows: (1) That the appeal is frivolous; (2) that it is taken solely for the purpose of harassing defendant and delaying the execution of - a final judgment, rendered by this court, in a suit between the same parties (162 La. 81, 110 So. 96), whereby plaintiff is seeking to try anew the issues disposed of in that suit. As to whether or not the appeal is frivolous, and is taken merely for the purpose of harassing the appellee and of delaying the execution of a judgment, necessarily involves *885 an inquiry into the facts and merits of the case. Where a motion to dismiss is based upon grounds requiring such an inquiry, the motion will be denied, and the appeal will be heard regularly upon its merits. Baker v. Frellsen, 32 La. Ann. 822; Thomas v. Guilbeau, 35 La. Ann. 927; Pasley v. McConnell, 39 La. Ann. 1097, 3 So. 484, 485; Drewes & Co. v. Ham & Seymour, 157 La. 861, 103 So. 241; John Barkley & Co., Limited, v. Ham & Seymour, 157 La. 872, 103 So. 245; Succession of Damico, 161 La. 725, 109 So. 402; Succession of Pavelka, 161 La. 728, 109 So. 403. The motion to dismiss is overruled.