Anderson v. New Orleans Ry. & Light Co.

On Motion to Dismiss Appeal. MONROE, J. [1] The appeal herein was lodged in this court on November 25, 1912; the answer and motion to dismiss was filed on December 7, following — the ground relied on for the dismissal being: “That plaintiff is without right of appeal, for the reason that he has acquiesced in the judgment rendered against him by paying the costs incurred by defendant, for which he was condemned by the judgment, as will appear from the document hereunto annexed.” The document annexed is an affidavit, by a member of the law firm by whom plaintiff was represented in the district court, which reads: “That his firm represented Frank Anderson in the suit brought by said Frank Anderson against the New Orleans Railway & Light Company. That he prosecuted said suit as attorney for Frank Anderson, and, after judgment had been rendered rejecting the demand, the deponent notified said Frank Anderson of said judgment, and thereafter paid and satisfied the costs expended by defendant in defense of the said suit. That said costs were paid on July 15, 1912. That Anderson knew nothing of affiant’s action, and affiant paid costs because he was surety on bond for costs and was liable therefor.” Appellant by other counsel suggests that the motion to dismiss was filed too late, and that he is not bound by the action of his former counsel in the premises, because it was taken without his knowledge. [2] We are of opinion that, as the acquiescence in a judgment may take place at any time, so the motion to dismiss an appeal, on the ground that it has taken place, may be made at any time. We are further of opinion that a payment under a judgment which is made without the knowledge or approval of the party condemned is not an acquiescence by him in such judgment. The motion to dismiss the appeal is therefore overruled.