Vezich v. MacAlusa

McCALEB, Judge.

This matter came on to be heard at the same time as Lawrence Vallon v. Morris Cleaners & Dyers, Inc. (La.App.) 167 So. 887 , decided this day, and the cases were consolidated for argument. The facts with reference to the failure to serve the appel-lee with citation of appeal are identical with those in the Vallon Case, except it is claimed in this case that the appellee has waived his right to move to dismiss the appeal because he voluntarily appeared in this court.

*890 The transcript was filed here on January 4, 1936, and the case was set for trial on March 3, 1936. On the day of trial ap-pellee appeared and filed a motion to dismiss.

Appellant contends that under article 886 of the Code of Practice a motion to dismiss the appeal shall be made within three days from the date of the filing of the record in this court. The point is without merit because article 886, C. P., provides in substance that the appellee shall “within three days after the time allowed him for appearance by the citation of appeal, file with the clerk his answer in writing to such appeal.” In the instant case the appellee was not served with the citation of appeal, and, therefore, the provisiohs of the Code of Practice are without application.

For the reasons herein assigned and for the reasons given in Lawrence Vallon v. Morris Cleaners & Dyers, Inc. (La.App.) 167 So. 887 , this day decided, the motion to dismiss the appeal is sustained and the appeal ordered dismissed.

Appeal dismissed.