Tolmas v. Lofaso , 10 La. App. 785 ( 1929 )

ON MOTION TO DISMISS.

WESTERFIELD, J.

Plaintiff and appellee moves to dismiss this appeal upon the ground that there has been an acquiescence in the judgment appealed from, by reason of the fact that the sum of $500 has been paid on account of the judgment by the defendant and appellant on the 15th day of August, 1928, citing Flowers vs. Hughes, 46 La. Ann. 436, 15 So. 14. No answer has been filed to the motion to dismiss.

The issue of fact presented by the motion must be determined by the administration of testimony in the proper tribunal before the motion to dismiss presented to this court may be disposed of. Raines et al. vs. Dunson et al., 143 La. 321, 78 So. 574.

It is therefore ordered that this case be remanded to the Civil District Court for the Parish of Orleans for the purpose of taking testimony in regard to the alleged acquiescence by defendant in the judgment appealed from. Consideration of the case is continued until such evidence is taken and filed.