Mallouf v. Fontenot , 170 La. 612 ( 1926 )

Plaintiff and appellee has moved to dismiss the appeal herein, which is a devolutive one, on the following grounds, to wit:

"(1) That your petitioner is informed and believes that the said transcript was not filed on the return date or in time.

"(2) That the bond was not filed within the period required by law."

The defendant and appellant, K. Moosa, opposes the dismissal of the appeal, contending that the averments, setting forth the grounds for dismissal are too vague and general to support a motion to dismiss, that appellee does not aver that the transcript was not filed on the return day, or in time, but merely avers that she is informed and believes that it was not, and that the motion does not allege ultimate facts as a basis for the dismissal of the appeal, but alleges merely conclusions of law, and hence is insufficient.

We gather, with the aid of appellee's brief, that the facts upon which she bases her motion to dismiss are: That prior to the return day, fixed by the trial judge, appellant applied to this court for further time within which to file the transcript of appeal; that this court extended the return day to February 8, 1926; that the transcript was filed here on January 26, 1926, within the time as extended, though after the expiration of the return day, fixed by the district judge, which was January 11, 1926; that the order of this court extending the return day to February 8, 1926, is null and void, for the reason that, when this court granted the extension, the appellant had not furnished his appeal bond, and hence that this court was not vested with jurisdiction over the appeal, when it extended the return day, and that, the order of extension being null and void, the filling of the appeal bond, on January 22, 1926, was not timely, and the filing of the transcript here on January 26, 1926, was too late, the only valid return day having expired.

If appellee so contends, and we think that she does, she should have set forth her grounds for dismissal with more particularity than she has. Vague and general allegations are not sufficient to support a motion to dismiss. Thus, in Bordes v. Bank of St. Bernard, 141 La. 144, 74 So. 884, the grounds for the dismissal of the appeal were:

"(1) That said appeal was not taken and filed within the required delay as fixed by law.

"(2) That the transcript herein filed is not complete, and does not contain all the documents pertaining to same.

"(3) That all parties were not made and cited to this appeal.

"(4) That the certificate of the clerk is not such as the law requires, as it shows certain documents as not being included in the transcript."

The court, in that case, considered the first, second, and fourth grounds, stated above, too vaguely and indefinitely pleaded to be noticed, and said:

"We learn from the brief that the first of these grounds of dismissal is based upon the fact that the bond of appeal was filed more than 12 months after the date of the judgment. As an allegation of that fact the language of the motion to dismiss is too vague and general. Vague and general allegations will not support a pleading in this court any more than in the trial court. The same generality and vagueness is found in the language of the second and fourth grounds. These three grounds are not stated with sufficient particularity to call for consideration. * * *"

In the case at bar, not only is the first ground for dismissal too vaguely pleaded, but, moreover, the mere fact that appellee was informed and believes that the transcript was not filed on the return day or in time does not justify the dismissal of the appeal. Facts showing that the transcript was not filed in time, together with facts showing the nullity of the order of extension, which order is not even mentioned in the motion, should have been alleged. The second ground for dismissal is not only too vaguely pleaded, but, moreover, merely states the legal conclusion of the pleader without stating a single fact justifying that conclusion, or alleging the nullity of the order of extension, relied upon in the brief filed. See section 2 of rule IX, 136 La. x.

For the foregoing reasons we are of the opinion that the grounds set forth for dismissal have not been pleaded with sufficient particularity to entitle appellee to the relief sought, if she be entitled to the relief at all.

The motion to dismiss is therefore denied.

On the Merits.