No. 17,126 | La. | Nov 30, 1908
This suit was brought by Edward W. Pearce, C. Oscar Pearce, and other heirs of Mrs. C. L. Pearce to recover certain real estate sold in the succession of their grandfather. There was judgment in favor of the defendants on their plea of estoppel based on allegations that the said Mrs. C. L. Pearce had consented to the succession-sale and had subsequently sold her entire interest in the succession, including the land in dispute, to John A. Haas, one of the defendants.
Plaintiffs asked for and were -granted a devolutive appeal and the bond was fixed at §100. Edward W. Pearce as principal, and C. Oscar Pearce as surety, executed an appeal bond in the sum of §100 conditioned for the prosecution, of his appeal and the payment of whatever judgment might be rendered against him.
Defendants have moved to dismiss the appeal on the ground that C. Oscar Pearce, one of the plaintiffs in this suit, and one of the appellees before this court, was not competent to sign the appeal bond as surety.
Appellant has made no appearance by counsel in this court, and there is no suggestion that the surety on the appeal bond is not one of the plaintiffs in the suit A presumption of identity of person arises from identity of name. 16 Oyc. 1055.
In the well-considered case of Barrow et al. v. Clack, 45 La. Ann. 478" date_filed="1893-03-15" court="La." case_name="Barrow v. Clack">45 La. Ann. 478, 12 South. 631, it was held that a necessary party to an appeal, either as appellee or appellant, is not competent to sign an appeal bond as surety.
It is therefore ordered that the appeal herein be dismissed.