Noble v. Landry , 175 La. 367 ( 1929 )

Plaintiff sued for separation from bed and board; defendant joined issue and reconvened for the same relief. The trial judge rejected both demands, and both parties have appealed.

Plaintiff has filed a motion in this court to "discontinue this suit."

The motion, as a motion to discontinue, comes too late. A plaintiff may indeed discontinue his suit if so minded (though not to the prejudice of a reconventional demand), but he must do so before judgment is rendered in the court below. Code Prac. arts. 491, 532; Trenchard v. N.O. Ry. Lt. Co., 123 La. 36, 40, 48 So. 575.

On the other hand, if considered as a motion to dismiss plaintiff's own appeal, it is not consented to by defendant and therefore cannot be allowed. Where an appeal has been perfected and the jurisdiction of the appellate court has attached, the appeal cannot be withdrawn without the consent of all the appellees and of the court. Code Prac. arts. 594, 595, 901; Succession of Trouilly, 52 La. Ann. 276, 26 So. 851.

The motion is therefore denied.

On Plaintiff's Motion to Dismiss Appeal of Defendant in Reconvention.