10 La. 269 | La. | 1836
delivered the opinion of the court.
The defendant, in this case, having called his vendors in warranty, they came in and contested the plaintiff’s right to the slave, sought to be made subject to his mortgage, and
The plaintiff and appellee has prayed the dismissal of the appeal, on account of the absence of any appeal bond in his favor; this being the case, the motion to dismiss, as to him, must prevail.
This party being thus out of court through the 'laches of the appellants, they still insist on the reversal of the judgment obtained by the defendant against them, not on account of the absence of any right in the plaintiff to the slave in question, but on account of the absence of any right in the defendant against them as warrantors, because the sale at which he acquired the slave was effected by them in autre dróit, i. e., as representatives of a succession.
The vendors might have avoided contesting the claim of the plaintiff on the slave, and contented themselves with denying their liability in warranty. They have, however, thought it safer to assume the defence of their vendee, and thus relieve him from the necessity of undertaking it himself. It is useless to inquire whether, on failing in the attempt to defend him, they were bound to contest the plaintiff’s claim before this court; they have made their election, and the defendant was informed of it by the citation, which made him and the "plaintiff both appellees. Had this been otherwise, the defendant must have considered whether it was his interest to suspend his right or the judgment he had obtained against his vendors, by appealing from that of the plaintiff, decreeing the sale of the slave, which was the basis of his own.
He was relieved from this consideration by the conduct of his vendors, who, having undertaken his defence in the court below, determined on continuing it in this. Through their own laches, it now appears that the error, which they allege the District Court committed, cannot be corrected.
Their appeal being now dismissed, as to the plaintiff, and the year having elapsed, the defendant cannot appeal. The
„ The appeal must, therefore, be dismissed.