Shultz Belting Co. v. W. K. Henderson Iron Works & Supply Co.

On Motion to Dismiss the Appeal. BREAUX, C. J. Defendant and appellee alleges that plaintiff and appellant acquiesced in the judgment by paying a money judgment amounting to $98.70 as shown. On that "ground defendant and appellee moves to dismiss the appeal. [1] Plaintiff and appellant, in answer to the motion made to dismiss the appeal, averred that there is no dispute “as to the facts” ; it admitted that it paid to defendant and appellee the amount awarded to it on the re-conventional demand by the judgment appealed from, and that this payment was made after a devolutive appeal was taken from the judgment, and after the required bond for the appeal was given'; that the payment made to defendant by plaintiff was one item of the reconventional demand of defendant, said goods having been purchased from plaintiff by defendant; that the answer of defendant states that this payment to third parties was made after the filing of the suit by plaintiff; that all of these facts are either admitted, or to be found on record; that the answer and admission are filed for the purpose of avoiding the necessity of remanding the case to the lower court for the taking of testimony. The judgment from which a devolutive appeal was taken by plaintiff rejects plaintiff’s demand entirely, and on the reconventional demand decrees that defendant have judgment against plaintiff for $93.70, being amount refunded by defendant for inferior goods, with legal interest from date of the judgment. The letter of plaintiff’s counsel to defendant’s counsel inclosed a check for $93.70, covering judgment “of $93.70 rendered against our clients,” “Tha Shultz Belting Company,” [265] “for refunds and interest,” “from November 1, 191T; interest, $5.40.” Concluding words of the letter, “Please acknowledge receipt and have this judgment canceled from the record.” In the evidence, we find the following by the secretary, Durie, of plaintiff’s firm: “Do you know anything of a' refund at all, $93.70, on date November 2, 1911, for belting furnished which they had to replace? “A. We have a letter from them showing a claim, I believe for some belting they had to replace on account of being defective.” The claim allowed was not on their credit account, because it came after suit had been filed, and too late to be credited. It was, as we take it, a claim allowed from the first as a correct claim. The plaintiff firm has adopted the policy as necessary in its special line of business of replacing defective machinery or giving proper credit. It was a method of adjustment. As the claim was not contested, its payment affords no ground for dismissing the appeal. There was no real dispute in regard to this amount. We have arrived at the'conclusion to let the question remain open, to be considered on the merits. We only decide that at this time and with the evidence before us we are not of the opinion that the appeal should be dismissed. There is a note somewhat pertinent in Garland’s C. P., p. 375; it relates to the appeal as relates to the reconventional demand, epitomizing the rules relating to appeals; the note slates that the appealability of the reconventional demand is not affected by the unappealable nature of the main demand. ' That being the case, it follows that the appealability of the main demand is not affected by the unappealable nature of the reconventional demand. The cited decisions (those we have had time to consult) sustain the note. While they are not directly in point, they are suggestive in certain eases of the possibility of confessing or recognizing the judgment as to the one, the reconventional demand, and not as to the other, the main demand. The cited ease of Jolley v. Vivian Oil Co., 131 La. 937, 60 South. 622, is not directly in point, nor was it as stated by counsel for plaintiff and appellant, “The attorney accepted the payment, but reserved the right of appeal.” The attorney did not reserve the right of appeal contradictorily with defendant company. The decision cited held that the judgment was recognized because by payment appellant concluded himself from appealing to the end of setting aside and annulling the very lease, a large amount of the rent of which he had paid. In the ease under consideration, appellant paid the reconventional demand, covering an amount, the evidence shows, the plaintiff was from the first willing to pay, and in regard to which there was no real dispute; There is at least a doubt; it will be solved in favor of plaintiff and appellant. The right of appeal is the rule, and will not be denied unless it is evident that the appellant has recognized as correct the judgment from which he has taken an appeal. Motion overruled.