Cowart v. Martin , 358 So. 2d 652 ( 1978 )

358 So. 2d 652 (1978)

Kenneth C. COWART and Mrs. Kenneth C. Cowart, Plaintiffs-Appellees,
v.
Jesse L. MARTIN, Defendant-Appellant.

No. 11755.

Court of Appeal of Louisiana, First Circuit.

February 13, 1978.

James E. Kuhn, Denham Springs, for plaintiffs-appellees.

J. Lynn Ponder, Amite, for defendant-appellant.

Before LANDRY, SARTAIN and ELLIS, JJ.

SARTAIN, Judge.

Defendant, Jesse L. Martin, brings this appeal from a judgment rendered in the trial court against him in favor of plaintiffs, Kenneth C. and Tonita M. Cowart, based upon a breach of contract. The record before us is barren of either a transcript of the testimony or written reasons by the trial judge. However, in brief, plaintiffs assert that the judgment now sought to be appealed is based upon a compromise between the parties resulting in a consent judgment by stipulation. We agree and dismiss defendant's appeal.

C.C.P. Art. 2085 provides in pertinent part that "An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court . . ." Further, the lack of a right of appeal may be raised at any time. C.C.P. Art. 2162; Cotton v. Wright, 214 La. 169, 36 So. 2d 713 (1948).

Plaintiffs assert in brief and in oral argument that on the date this matter was set for trial on the merits, the parties entered into a compromise and by stipulation consented to the judgment that was rendered. The minutes of the court of that date so reflect. The judgment itself is signed by counsel for both parties.

Further, we particularly note that defendant's present counsel^[1] does not contradict, either in brief or oral argument, the contention of plaintiffs' counsel relating to the compromise.

Under these circumstances, we are satisfied that the judgment now sought to be appealed was a consent judgment which is not appealable. C.C.P. Art. 2085.

For these reasons, appellant's appeal is dismissed at his cost.

APPEAL DISMISSED.

NOTES

[1] Defendant obtained different counsel in the interim period between the date of the judgment and the order of appeal.