Riney v. Hemenway Furniture Co.

PRO YO STY, J. A motion to dismiss the appeal has been filed, on the ground that the appeal was taken contrary to the wishes of plaintiff expressed to his attorney and after the attorney had been discharged from the case, and on the further ground that the case has been fully settled. Letters and affidavits and a receipt are filed in this court in support of the motion. If the matter stands as would appear by these documents, the appeal must unquestionably be dismissed. The attorney of plaintiff has filed a counter affidavit, in which he criticizes severely the conduct of defendant’s counsel in inducing plaintiff to consent to abandon the appeal, but does not gainsay the fact of such consent having been given. It is only in the brief that a suggestion of fraud is made. Upon these facts the appeal must be dismissed. The decision in the case of Benham v. Parish of Carroll, 28 La. Ann. 343, cited by the learned counsel for plaintiff, was rendered under the Constitution of 1879 when this court did not have, as under the present Constitution, “original jurisdiction as may be necessary to enable it to determine questions of fact affecting its own jurisdiction in any case pending before it.” Const, art. 85. In re Pettis, 114 La. 870, 38 South. 590. Appeal dismissed.