Kilchrist v. Cagle Chevrolet, Inc.

DOMENGEAUX, Judge. Plaintiff appealed the judgment of the district court dismissing his suit, without prejudice, as to certain defendants herein. Defendants, Joseph M. Cagle, Kenneth H. Cagle, and their insuror, Liberty Mutual Insurance Company, have answered the appeal praying that this court modify the district court judgment in order that the dismissal be with prejudice. This case was called for argument in the manner and at the time prescribed in the Uniform Rules of the Courts of Appeal, Rule V, Section 4, and the plaintiff-appellant having neither appeared nor filed a brief prior to the time the case was called for argument, the appeal is considered abandoned and is dismissed at appellant’s cost. Uniform Rules, Courts of Appeal, Rule VII, Section 5(b), as revised June 1, 1971. As to the contention of appellees, they had filed exceptions of no cause of action in the district court. In effect, plaintiff’s petition as to the appellees herein was dismissed because of the omission of essential allegations. The dismissal of a suit on an exception of no cause of action for lack of necessary allegations in the petition, without a trial on the merits is, in effect, a dismissal as in case of non-suit. Dupre v. Consolidated Underwriters, La.App., 99 So.2d 522, Succession of Guillory, La.App., 167 So. 901; Petty v. Jones, 10 La.App. 409, 121 So. 372; Smardon v. Broussard, 6 La.App. 579. Hence, a dismissal as of non-suit or without prejudice by the district court was in order. For the above and foregoing reasons plaintiff’s appeal is dismissed and the judgment of the district court is affirmed. Costs are assessed to plaintiff-appellant. Appeal dismissed. Judgment of District Court affirmed.