43 La. Ann. 538 | La. | 1891
The opinion of the court was delivered by
The plaintiff appeals from a judgment refusing to set ■.aside an order of appeal^ and to order execution to issue against the defendant, on the ground that the appeal bond was defective in form and that the surety was not good and solvent.
On the trial of the rule in the District Court to dismiss the appeal, evidence was taken, but filed some thirteen days after the rule had been heard, and several days after the dismissal. The appellee, in his brief, invokes paragraph 48, Section 7, of Act 136 of 1880, and contends that the testimony should be not only stamped, but also filed,, before judgment, and that in the event of an appeal no testimony not so stamped and filed before judgment should be copied into the transcript, and that if copied it should not receive consideration on appeal.
Counsel also relies on Section 2 of Act 136, which provides that no clerk shall file, or permit to be filed, any paper or document unless the stamped be affixed.
The timely affixing of the stamp is the only question.
The papers bear the stamp at this time.
We will not dismiss the appeal because of the alleged delay in complying with the law’s requirement With respect to fixing stamps. Lane vs. R. R., 43 An.
In several eases lately it was held that a judgment rendered on “the law and the evidence ”'will be affirmed, although the tran
Should we not consider the evidence to which objection is made as not being before us, we have the decree in which it is judicially made to appear that the law and the evidence are the grounds of the dismissal of the rule.
If the testimony had not been copied in the transcript, the authority of the quoted decisions would prevail. In maintaining it, we are satisfied that not the least injustice is done to the plaintiff, in not dismissing the appeal,, for we have considered the testimony taken (although not stamped in time), and have not found that there was cause for making the rule absolute and dismissing the appeal on trial of the merits of the rule.
The surety, as a witness, did not affirmatively testify as to the specific property he owns, but he stated that he is worth the amount of the bond subject to seizure, and that in addition the defendants placed funds in his hands to answer to the judgment.' The plaintiff did not choose to propound any questions to the witness, nor did he offer any testimony in rebuttal. The witness made at least a prima facie showing of his responsibility and ability to pay.
Not the least attempt having been made to prove the contrary,, we conclude that the bond is legal and sufficient.'
With reference to the last ground, that the bond of appeal sets out the obligation of the principals as joint, while the judgment against them is in solido, this has been decided and disposed of in a previous decision.
The right of appeal is the rule; it will be maintained, and the appeal will not be dismissed unless it be clearly shown that the appellant ha,s failed to comply with essential forms and requirements.
Judgment affirmed.