On Motion to Dismiss.

The judgment appealed from decrees a partition, and orders a sale to be made to effect the partition, and orders *979$850 to be paid to defendant out of tbe proceeds of the sale. Plaintiff and appellee has moved to dismiss the appeal on the ground that defendant has acquiesced in the judgment. Attached to the motion are duly certified documents showing that the judgment has been executed, the sale made, and the $350 paid to defendant and appellant. The latter cannot, and does not, gainsay his acquiescence in the judgment; but contends that. the motion to dismiss comes too late, it having been filed after the case had been fixed for trial, and more than three days after the filing of the transcript in this court. The transcript was lodged in this court on August 12, 1908; and the case was then asr signed for January 23, 1909. The motion to dismiss was filed January 12, 1909.

Ordinarily a motion to dismiss comes too late if filed more than three days after the filing of the transcript, or if filed after the appellee himself has caused the appeal to be fixed for trial. Saxon v. Southwestern Brick Company, 113 La. 637, 37 South. 540. But, necessarily, this can be the case only where the grounds of dismissal existed within the three days or at the time of the assignment for trial. In the present instance they did not. The acquiescence upon which the motion to dismiss is based did not take place until October 12, 1908, long after the expiration of the three days and after the assignment for trial.

Appeal dismissed.