Dardenne v. Schwing

BLANCHARD, J. This is a suit for partition of immovable property. There are-numerous co-owners, some of whom are plaintiffs, others defendants. There was judgment decreeing partition by licitation. From this judgment one only of the many, co-owners appeals. [319] A motion is filed to .dismiss his appeal, and the case is submitted now on that motion only. The grounds of the motion are, (1) that Calvin K. Schwing, the appellant, took the appeal merely for the purpose of delaying the sale of the property sought to be partitioned; (2) that the appeal is without merit and frivolous. A strong showing in the way of recital of facts, going to substantiate the charge that the appeal was taken merely for delay, is made in the motion to dismiss and in the briee of counsel for the appellees, but the same is dehors the record. The Court must needs confine itself to the case as presented in the transcript in considering the motion to dismiss. We cannot say, from what the record discloses, that the only object of the appellant in appealing is to subject the appellees to unnecessary and injurious delays, and to say that the appeal is frivolous would involve consideration of the merits of the controversy, and the merits have not yet been argued before us, neither orally or by brief, nor submitted for adjudication. The motion to dismiss is denied. The appeal was subsequently dismissed by consent.