Davis v. Kansas City Southern Railway Company

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974 So. 2d 834 (2008)

John Lee DAVIS, et ux.
v.
KANSAS CITY SOUTHERN RAILWAY COMPANY.

No. 07-1546.

Court of Appeal of Louisiana, Third Circuit.

January 23, 2008.

Arthur R. Carmondy, Jr., Shreveport, LA, for Defendant/Appellant, Kansas City Railway Company.

Shelly D. Dick, Forrester & Dick, Baton Rouge, LA, for Defendant/Appellant, Kansas City Railway Co.

Dorwan G. Vizzier, Alexandria, LA, for Plaintiffs/Appellees, John Lee Davis, et ux.

Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.

AMY, Judge.

On December 11, 2007, this court issued a rule for the defendant-appellant, Kansas City Southern Railway Company (hereinafter "KCS"), to show cause, by brief only, why the instant appeal should not be dismissed as having been taken from a non-appealable, interlocutory ruling. For the reasons assigned below, we dismiss the appeal.

*835 The instant case is a suit for personal injuries. KCS filed a Motion for Abandonment on December 22, 2006. On January 3, 2007, the suit was dismissed by the trial court for want of prosecution. Plaintiffs subsequently filed a Motion to Set Aside Order of Dismissal for Abandonment which the trial court granted orally on February 26, 2007. KCS filed a notice of intent to apply for writ of review on February 28, 2007. Judgment was signed on March 14, 2007, and notice of the signing of the judgment was mailed on March 15, 2007. Despite initially, filing a notice of intent to seek supervisory review, KCS filed a Petition for Appeal on April 16, 2007. The record in the instant appeal was lodged December 10, 2007.

The judgment appealed, which granted plaintiffs' Motion to Set Aside Order of Dismissal for Abandonment, does not decide the merits of this case and is interlocutory. La.Code Civ.P. art. 1841. Therefore, we hereby dismiss the instant appeal at KCS's cost. KCS is hereby permitted to file a proper application for writs in compliance with Uniform Rules—Courts of Appeal, Rule 4, no later than thirty days from date of issuance of this opinion. KCS is not required to file a notice of intent to seek writs nor obtain an order setting a return date pursuant to Uniform Rules—Courts of Appeal, Rule 4-3, as we hereby construe the motion for appeal as a timely filed notice of intent to seek a supervisory writ.

APPEAL DISMISSED. APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS.