Foster v. E. J. Deas Co. , 160 La. 187 ( 1926 )

On Motion to Dismiss.

ROGERS, J.

Plaintiffs are the owners of certain property contiguous to Kings Highway, a street or avenue in the city of Shreveport. They brought this suit for damages against said city and the E. J. Deas Company, Inc., in solido, alleging that under a contract ior paving a portion of said avenue the said defendants trespassed upon their property, destroying many valuable trees, and placing thereon a number of large stumps, logs, and other débris, for the removal of which plaintiffs were called upon to expend a large sum of money. The case, which was tried before a jury, resulted in a judgment for $2,500 against the E. J. Deas Company, Inc. Plaintiffs’ demand against the city of Shreveport was dismissed. From the verdict and judgment entered in accordance therewith the E. J. Deas Co., Inc., applied for, and obtained, an order for an appeal. E. J. Deas, individually, became the surety on the appeal bond, and on June 26, 1925, the transcript was filed in the clerk’s office of this court. In proceedings instituted in the court below, judgment was rendered on October 7, 1925, dismissing the appeal because of the pecuniary insufficiency of the surety on the appeal bond. • On November 12, 1925, appellees filed a motion in this court, attaching thereto a certified copy of the judgment, and praying that, after due hearing, | the said appeal be dismissed. This motion was fixed for a hearing in accordance with the rules of this court, and in due time came on to be heard, and was submitted. Appellant has made no appearance in this court either by way of opposition to the motion of appellees or by filing a brief in its behalf. We take it, therefore, that appellant concedes the correctness of appellees’ contention. The judgment of the court below dismissing the appeal is regular on its face, and it appears to have been rendered contradictorily with the appellant. In these circumstances there is nothing for us to do but to grant the prayer of appellees’ motion.

For the reasons assigned, the appeal herein is dismissed.