Waldauer v. Harris , 161 La. 10 ( 1926 )

Plaintiff instituted suit against defendant to recover the sum of $3,484.15, alleging that said amount was the excess over the guaranteed price of $7,750, for repairing and remodeling two dwellings located on Common street, in the city of Shreveport.

Defendant in his answer denies that the plans and specifications relied upon by plaintiff were those used under the contract.

Averring the actual cost of all work done to be $11,234.15, because of certain changes made with the consent of plaintiff, defendant reconvened and prayed for judgment against plaintiff in the sum of $1,123.41, being 10 per cent. commission claimed by defendant on the cost of said work and repairs.

Judgment in reconvention was rendered in favor of defendant in the sum of $775, and plaintiff appealed to this court.

During the pendency of the appeal, defendant was adjudged a bankrupt.

Under an order of the United States District Court for the Western District of Louisiana, directing the sale of the judgment obtained by defendant, the trustee in bankruptcy sold the judgment to plaintiff at private sale, and said sale was duly approved by the referee.

Under this state of facts, plaintiff has filed a motion to dismiss the appeal in this case. It is our opinion that the motion should prevail, as the judgment, since the appeal, has been acquired by plaintiff, against whom it was rendered in the court below, and has become extinguished by confusion. R.C.C. art. 2217.

It is therefore ordered that the appeal in this case be dismissed, at the cost of appellant.