No. 533 Precedential Processed

RDM Corp. v. Macaluso

Louisiana Court of Appeal, First Circuit · Filed November 6, 1961 · 134 So. 2d 127

Also decided on this docket: La. Ct. App. 1st Cir., April 9, 1962 139 So. 2d 806; La., July 15, 1875 27 La. 561

Cited by

Sutton v. Montegut 544 So. 2d 1181 La. Ct. App. 5th Cir. 1989
Buchanan v. State Civil Service Commission 372 So. 2d 1065 La. Ct. App. 1st Cir. 1979
South Central Bell Telephone Co. v. Dempster 303 So. 2d 278 La. Ct. App. 1st Cir. 1973
Fayard v. Celestan 227 So. 2d 795 La. Ct. App. 1st Cir. 1969
Board of Commissioners v. Lomm 220 So. 2d 489 La. Ct. App. 4th Cir. 1969
Hibernia National Bank in New Orleans v. Mary 174 So. 2d 200 La. Ct. App. 1st Cir. 1965
Choate v. Cofield 164 So. 2d 601 La. Ct. App. 1st Cir. 1964

Authorities cited

Identified automatically; this list may not be exhaustive.

Wilson v. Wilson 205 La. 196
Carpenter v. Madden 94 So. 2d 699
Attaway v. Melton 88 So. 2d 417
State Ex Rel. Payne v. Irion 163 La. 1019
Unity Industrial Life Ins. Co. v. Dejoie 197 La. 38
Bank of La Fourche v. Barrios 167 La. 215

Opinion text

SAMUEL, Judge. Appellant took this devolutive appeal from a judgment dismissing his application for a preliminary injunction to enjoin and restrain the sale of property under executory process. Appellee has filed a motion to dismiss the appeal on the ground that the question presented has become moot due to the fact that the sale has taken place subsequent to the appeal. Evidence to that effect is attached to the motion. Appellant has not filed an answer to the motion and has informed the court that he does not intend to file any pleadings in connection therewith. While it is true that this' court cannot receive evidence originally nor consider as evidence documents that were not introduced in the court below, this rule has been relaxed where facts occurring subsequent to the appeal are not denied, since it would serve no useful purpose to remand a case to the trial court solely to receive evidence of facts concerning which there is no denial. See Wilson v. Wilson, 205 La. 196, 203 , 17 So.2d 249, 251 . An appellate court is at liberty to assume that the facts set out in a motion to dismiss are admitted .if the motion has been submitted by opposing counsel without denial of the facts alleged therein. Carpenter v. Madden, La.App., 94 So.2d 699 ; Attaway v. Melton, La.App., 88 So.2d 417 ; State ex rel. Payne v. Irion, 163 La. 1019 , 113 So. 360 . We therefore accept as a fact that the sale herein sought to be enjoined has already taken place. Under such circum *128 stances, the sole question presented by this appeal being whether the trial judge properly refused to grant the preliminary injunction, the appeal must be dismissed. Unity Industrial Life Ins. Co. v. DeJoie, 197 La. 38 , 200 So. 813 ; Bank of La Fourche v. Barrios, 167 La. 215 , 118 So. 893 . Therefore it is ordered that the appeal in this case be dismissed at the cost of the appellant. Motion maintained.