On Motion to Dismiss Appeal
After a rehearing had been granted herein, present counsel for the defendant-appel-lee filed a motion to dismiss the appeal on the ground that the transcript of appeal had been tardily lodged in this court and therefore we were without right to further entertain the cause.
Counsel in support of their motion cite the case of Filiberto v. Evans, 9 La.App. 104, 118 So. 844, 845, wherein the court stated that "a motion to dismiss the appeal for failure to file the transcript in time may be made at any time.” That could hardly be interpreted, however, to mean that the appellee is still within his rights to file such a motion after the case has been argued, submitted, and decided on one hearing in the appellate court and is pending on rehearing. The appellee’s appearance in the first instance, it seems to us, has to be construed as a waiver of the lack of observance of the formality now complained of.
Besides, in view of the decisions of the Supreme Court on the question of the timely filing of such a motion, we doubt that the rule was properly applied in the cited case. The decisions we have reference to indicate that the rule under which it is permissible to file a motion to dismiss the appeal at any time applies to those cases only where such motion is based on the want of the legal right to appeal and not when founded on any informality or irregularity in bringing up the appeal. See Sample v. Wheless et al., 159 La. 844, 106 So. 325, and cases therein cited. In the earliest of these cases, James v. Fellowes & Co., 23 La.Ann. 37, the distinction is clearly drawn as appears from the following syllabus which correctly reflects the holding of the court:
“A motion to dismiss an appeal which is founded on the want of a legal right to the appeal, may be made at any time. It is only such motions as go to the irregularity of bringing up the appeal, that must be made within three judicial days from the filing of the transcript in the appellate court.”
Over and above all this, it is our recollection that when this case was originally submitted, counsel then representing the appellee, who has since departed this life, specifically waived the irregularity on which the motion to dismiss the appeal is now presented.
For the various reasons stated, the motion is overruled.