
    (35 South. 583.)
    No. 14,895.
    DARDENNE et al. v. SCHWING.
    (June 22, 1903.)
    APPEAL—MOTION TO DISMISS.
    1. An appeal will not be dismissed on the ground that it was taken merely for delay unless it appear plainly from the record that the only object the appellant had in appealing was to subject the appellee to injurious delay.
    2. To determine that the appeal is frivolous and dismiss it on that ground would involve consideration of the merits of the controversy —which are not before the court on the motion to dismiss.
    (Syllabus by the Court.)
    Appeal from Twenty-First Judicial District Court, Parish of Iberville; E. B. Talbot, Judge.
    Action by Henry D. Dardenne and others against Calvin K. Schwing. Judgment of partition, and one co-owner appeals. Motion to dismiss.
    Denied.
    Louis Lozano, for appellant. Hébert & Hébert, for appellees.
   BLANCHARD, J.

This is a suit for partition of immovable property. There are-numerous co-owners, some of whom are plaintiffs, others defendants.

There was judgment decreeing partition by licitation.

From this judgment one only of the many, co-owners appeals.

A motion is filed to .dismiss his appeal, and the case is submitted now on that motion only.

The grounds of the motion are, (1) that Calvin K. Schwing, the appellant, took the appeal merely for the purpose of delaying the sale of the property sought to be partitioned; (2) that the appeal is without merit and frivolous.

A strong showing in the way of recital of facts, going to substantiate the charge that the appeal was taken merely for delay, is made in the motion to dismiss and in the briee of counsel for the appellees, but the same is dehors the record.

The Court must needs confine itself to the case as presented in the transcript in considering the motion to dismiss.

We cannot say, from what the record discloses, that the only object of the appellant in appealing is to subject the appellees to unnecessary and injurious delays, and to say that the appeal is frivolous would involve consideration of the merits of the controversy, and the merits have not yet been argued before us, neither orally or by brief, nor submitted for adjudication.

The motion to dismiss is denied.

The appeal was subsequently dismissed by consent.  