Pugh v. Pugh

[1] Defendant, appellee, Wallace J. Pugh, filed a motion to dismiss the appeal of plaintiff, appellant, Mrs. Leila May Pugh, on the grounds — (1) That the appeal is frivolous and that (2) the transcript was not timely filed.

[2] This suit was brought by Mrs. Leila May Smith Pugh against her husband, Wallace J. Pugh, for a separation from bed and board. Prior to the trial on the merits plaintiff obtained a preliminary injunction restraining defendant from alienating or encumbering certain community property. The plaintiff is appealing suspensively from the judgment of the district court dissolving the injunction and dismissing plaintiff's suit.

[3] In support of the motion to dismiss, the mover contends that the appellant totally failed to make out her case in the trial court and cannot possibly hope to obtain a reversal of the judgment of the lower court, and that the appeal is therefore a frivolous appeal. There is no merit to this contention because that is a question to be determined when the case is heard on its merits and will not be considered on a motion to dismiss the appeal. Bujol v. Missouri Pacific Railroad Co., 207 La. 123,20 So.2d 608; Succession of Damico, 161 La. 725, 109 So. 402; Succession of Pavelka, 161 La. 728, 109 So. 403 (where numerous authorities are cited).

[4] As to the second ground urged for dismissing the appeal we see that the order granting the appeal was signed on June 24, 1949, and the transcript of appeal was filed on August 23, 1949, that is to say within the sixty days prescribed by Article 574.1 of the Code of Practice.

[5] The motion to dismiss the appeal is denied.