Walker v. Jones

LANDRY, Judge.

This appeal by defendant, The State of Louisiana, Through the Department of Highways (Department), is from the judgment of the trial court casting the Department in damages for personal injuries and connected special damages arising from an automobile accident which occurred in East Baton Rouge Parish on August 29, 1962.

For the reasons hereinafter set forth, we ex proprio motu dismiss the appeal as abandoned, pursuant to Rule VII, Section 5(b) of the Uniform Rules, Courts of Appeal (see LSA-R.S. Vol. 8, page 383, et seq.) which provides as follows:

“Section 5. The court may, ex proprio motu:

(b) Consider abandoned and dismiss the appeal in any case in which the appellant has neither appeared nor filed brief prior to the date fixed for submission of the case.”

The Department’s appeal was fixed for submission on April 1, 1968. When this matter was called for argument in its proper turn on said submission date, it was thereupon disclosed that appellant (the Department) had filed no brief. Nor was any counsel for appellant present in court to answer the docket call or make an appearance on appellant’s behalf.

At this juncture the Clerk of the Court informed the Court that counsel for the Department called by telephone on the morning of April 1, 1968, and informed the Clerk that counsel did not intend to abandon the appeal taken on behalf of the Department and would file a brief at a later date.

Customarily and repeatedly Rule VII, Section 5(b) has been construed to the effect that if the appellant’s brief is not filed and no appearance made on behalf of appellant in accordance therewith, the appeal is dismissed ex proprio motu.

“Appearance” as contemplated by the applicable rule means either a personal appearance before the Court or formal presentation of a written motion or pleading requesting time beyond the submission date in which to file a brief. Telephonic notification to the Clerk of the Court of counsel’s intention not to abandon the appeal does not fulfill the requirement of an appearance within the purview of the applicable rule.

Accordingly, the appeal taken herein by the State of Louisiana, Through the Department of Highways, is adjudged abandoned and dismissed by the Court ex proprio motu.

Appeal dismissed.