32 La. Ann. 561 | La. | 1880
On Motion to Dismiss.
The opinion of the Court was delivered by
The order for a suspensive appeal, first obtained in this case by the defendants, from the judgment against them, having been set aside and another order, but for a devolutive appeal, having since been allowed, the plaintiff and appellee move to dismiss that last appeal, because,
Eirst — The certificate of the clerk and the transcript of said appeal are imperfect and incomplete. The defects, and imperfections, and omissions in said transcript are attributable to the appellants, or to their counsel, under, whose supervision the same was prepared.
Second — All the parties to the judgment have not been made parties to the appeal.
Third — After the rendition of the judgment appealed, from, one of the defendants, M. Buck Miller, died, and the appellants have failed to make his heirs and legal representatives parties to the appeal, or to ask for citation upon them.
Fourth — The appellants have failed to ask for citation upon all parties to the judgment.
Fifth — W. J. Behan, N. T. Yaudry, John Thorn, Jas. Buckley, and L. T. Manning, appellants, have acquiesced in the judgment appealed from,, and cannot be heard to contest its validity.
On the first ground r
Subsequently, as already observed, the judgment of the lower court, refusing execution, having been reversed by this Court, and the order for a suspensive appeal having been rescinded, a number of the defendants, obtained a devolutive appeal, and have filed in this-Court a transcript containing 80 pages, in which the clerk of the lower court certifies that “ the foregoing eighty pages and eight lines, and transcript Nos. 1 and 2, on file in Supreme Court, do contain a true, correct, and complete transcript of the proceedings had, and all documents filed,” etc. To this transcript is attached another certificate, in which the Clerk further attests that the transcript contains “ all the evidence adduced ” in the case.
The second transcript on the appeal, taken by the plaintiffs from the judgment refusing the issuing of execution, was filed by the appellants under the number placed upon the first transcript, No. 7573. The plaintiffs show no objection to such a course on their part, and the defendants acquiesced in it. With what grace can the plaintiffs now contend that the defendants did an illegal act when they caused the third transcript to be registered, as they themselves had done, under the same number ? Unquestionably it would have been preferable, for the convenience of all, if the appellants, under their devolutive appeal, had caused a transcript to be made of the entire record of the lower court; but this was not essentially necessary. The Clerk, in his attestations to the third transcript, might have been more explicit, and designated more specifically the transcripts Nos. 1 and 2, to which he refers, but the ap-pellees do not complain of this, and the identity of the transcripts referred to. is not at all disputed, but rather admitted, as it necessarily should be. The law was substantially complied with. The three transcripts bearing the same number, certainly, together, contain all the proceedings had, all the evidence adduced, and all the documents filed in the lower-court, in this case. It would be uselessly, nay,, injuriously, onerous, to require a new complete transcript of the whole very voluminous record of the lower court. 31 An. 427 ; 10 La. 514 ; 9 An. 292.
On the second and fourth grounds, which we will consider together •as germane:
In the case of Seghers vs. Soulé, not reported, O. B. No. 46, p. 16, this Court said, on a motion to dismiss : “ Appellants were not bound to mention the names of appellees in their petition for appeal. They praiyed that the plaintiffs (who are the appellees), be cited. This was sufficient. It was the duty of the clerk to issue citations to all the ¡plaintiffs mentioned in the petition ; and it was the duty of the sheriff to ¡serve the citations. No appeal should be dismissed, unless the fault is •attributable to appellants. Such was not the case here.”
A reference to authorities on the subject shows that this late ruling .is well founded. 6 1.1; 17 La. 516 ; 6 R. 127 ; 7 R. 10 ; 2 An. 769 ; 12 . An. 332 ; 13 An. 259 ; 14 An. 698 ; 20 An. 37.
On the third and fifth grounds:
There were fourteen defendants in the suit, and they were all condemned by the judgment, based on the verdict of the jury, to pay, in solido, fifteen thousand dollars to' the plaintiffs. The petition for a de-volutive appeal was made on behalf of eleven of them.
If it be true, that Vaudry, Thorn, Buckley, and Manning have acquiesced in the judgment, it is no reason to dismiss the appeal as regards the others, who have not acquiesced, who cannot be divested of their right of appeal by any act of any of their co-defendants, and who •continue to have a standing in this Court. When it will be made to appear to this Court, at the proper time, and in the proper form, that such .acquiescence has taken place, the Court will abstain from adjudicating as to those parties. If it be true that M. B. Miller be dead, the omission, if any exist, to make his representatives parties, cannot prejudice the appellants, who have apparently done every thing that the law required of them to put themselves in the attitude of appellants. There is no intimation as to the time of his death in order to establish whether it occurred before or after the date of appeal; and there is nothing to •show that when the petition was filed the appellants knew of his death. The irregularity, if any, in this particular, can still be urged.
The judgment was signed on the 30th of June, 1879, and the delay for a devolutive appeal has not elapsed. Boutté vs. Boutté, 30 An. 181. The counsel for appellants, in his brief, informs us, however, that the heirs of Miller have no interest, as they have voluntarily acquiesced in •and executed the judgment.
The motion to dismiss is denied, with costs.
