
    James E. WALKER, Individually and as Administrator of the Estate of his minor children, James C. Walker and Alicia Walker and Mrs. Golda F. Walker v. William JONES et al.
    No. 7394.
    Court of Appeal of Louisiana. First Circuit.
    April 8, 1968.
    Rehearing Denied May 27, 1968.
    Writ Granted June 28, 1968.
    Robert J. Jones, Baton Rouge, for appellants.
    Dodd, Hirsch, Barker, Avant & Wall, Percy, Macmurdo & Gray, Baton Rouge, Zelden & Zelden, New Orleans, for ap-pellee.
    Before LANDRY, BAILES and CUT-RER, JJ.
   LANDRY, Judge.

This appeal by defendant, The State of Louisiana, Through the Department of Highways (Department), is from the judgment of the trial court casting the Department in damages for personal injuries and connected special damages arising from an automobile accident which occurred in East Baton Rouge Parish on August 29, 1962.

For the reasons hereinafter set forth, we ex proprio motu dismiss the appeal as abandoned, pursuant to Rule VII, Section 5(b) of the Uniform Rules, Courts of Appeal (see LSA-R.S. Vol. 8, page 383, et seq.) which provides as follows:

“Section 5. The court may, ex proprio motu:
(b) Consider abandoned and dismiss the appeal in any case in which the appellant has neither appeared nor filed brief prior to the date fixed for submission of the case.”

The Department’s appeal was fixed for submission on April 1, 1968. When this matter was called for argument in its proper turn on said submission date, it was thereupon disclosed that appellant (the Department) had filed no brief. Nor was any counsel for appellant present in court to answer the docket call or make an appearance on appellant’s behalf.

At this juncture the Clerk of the Court informed the Court that counsel for the Department called by telephone on the morning of April 1, 1968, and informed the Clerk that counsel did not intend to abandon the appeal taken on behalf of the Department and would file a brief at a later date.

Customarily and repeatedly Rule VII, Section 5(b) has been construed to the effect that if the appellant’s brief is not filed and no appearance made on behalf of appellant in accordance therewith, the appeal is dismissed ex proprio motu.

“Appearance” as contemplated by the applicable rule means either a personal appearance before the Court or formal presentation of a written motion or pleading requesting time beyond the submission date in which to file a brief. Telephonic notification to the Clerk of the Court of counsel’s intention not to abandon the appeal does not fulfill the requirement of an appearance within the purview of the applicable rule.

Accordingly, the appeal taken herein by the State of Louisiana, Through the Department of Highways, is adjudged abandoned and dismissed by the Court ex proprio motu.

Appeal dismissed.

S ART AIN, Judge

(dissenting from refusing to grant rehearing).

I must respectfully dissent from the refusal of the majority, acting en banc, to grant a rehearing in the above entitled and numbered cause. At the outset I wish to state that the position I take relative to the present application for a rehearing does not mean that I disapprove of the actions of my colleagues when they dismissed the appeal as the facts were then presented to them. However, I think it is wrong now to say that we will not review that decision in light of further explanation of those facts.

There is really no disagreement over the facts as set forth in appellant’s application for a rehearing wherein the following is stated :

“ * * * On the morning of April 1, 1968, prior to the convening of court, the attorney for the Department of Highways called the Clerk of Court of this Court on the telephone and advised the Clerk that he knew he could not argue the case so he was not going to come over to the hearing but that he did not intend to abandon the appeal and he would file a brief later that day. The attorney then requested that the Clerk so advise the Court, and the Clerk said ‘okay’. The Clerk did not say that it would not be acceptable. The fact is the Clerk did not know that the attorney represented the appellant. The Clerk has advised the undersigned that, if he had known that the attorney calling represented the appellant, he probably would have advised him that the attorney should be present in person. Although his conclusion was apparently not founded on facts, the attorney has advised the undersigned that he thought the telephone call was sufficient and he proceeded to complete his brief and did file it with the Court in the afternoon of that same day.”

Admittedly, it is not the Clerk’s responsibility to interpret the rules of this court for the attorneys. Neither is a request made to the Clerk by telephone an application to the court for the exercise of certain privileges which may only be granted by the court. However, it is clear to me that there was an honest misunderstanding on the part of attorney for defendant-appellant and the Clerk with respect to the former’s request for permission to file its brief on the day of the hearing. The misunderstanding, such as it was, clearly indicates to me an intention not to abandon the appeal.

I feel secure in the belief that had counsel for appellant been present in court to make the request, it would have been granted. Appeals are favored in law and because of the particular facts of this case, I am constrained to say that Rule VII, Section 5(b), of the Uniform Rules, Courts of Appeal, 8 LSA-R.S., which is permissive, has been too strictly applied by the refusal of the majority to grant a rehearing.

En Banc. Rehearing Refused.

SARTAIN, J., dissents from the refusal to grant a rehearing, with written reasons.

ELLIS, J., dissents from the refusal to grant a rehearing.  