Diamond T. Motor Trucks, Inc. v. Bilich.

Plaintiff sued the defendant on a promissory note. The answer admits all of the allegations of the petition, but there is a reconventional demand filed for the sum of $205.60, in which it is claimed that the note held by the plaintiff was given in payment of the purchase price of a truck sold by the plaintiff to the defendant, and that the truck, at the time of the sale, was not in good running order, and that, as a result, defendant was subjected to the expense of certain repairs and otherwise damaged.

The trial court found for the plaintiff in the amount sued for and dismissed the reconventional demand. The defendant has appealed from the judgment.

On the day of argument defendant and appellant filed a motion to dismiss his appeal, but counsel for plaintiff and appellee has not consented to its withdrawal.

We first consider the motion to dismiss the appeal. Under the provisions of article 901 of the Code of Practice the appellate court is without power to allow the appellant to withdraw his appeal, after the jurisdiction of the court has attached, unless the appellee consents thereto. Hennen et al. v. Hennen et al.,173 La. 404, 137 So. 195; Witbeck v. Witbeck, 174 La. 899,141 So. 871; Noble v. Landry, 175 La. 367, 143 So. 329.

Examination of the cause upon its merits discloses that the defendant appellant has failed to prove his claim in reconvention. Purely a question of fact is involved, and we find no error in the holding of the trial judge.

For the reasons assigned, the motion to dismiss the appeal is overruled, and the judgment appealed from is affirmed.

Motion to dismiss denied.

Judgment affirmed.