14 La. Ann. 329 | La. | 1859
Lead Opinion
A motion has been made in this case to dismiss the appeal taken by the defendant, on the ground of his voluntary execution of the judgment by a payment in full of the principal, interest and costs, after the appeal was granted.
The record shows, that defendant took, in open court, a suspensive appeal from the judgment, but that he did not give bond according to law, for an appeal of that character; that an execution issued on the judgment, and his property was seized under it; that the seizure was released by order of the plaintiff’s attorney, and that the costs of suit were paid to the Sheriff.
The motion to dismiss alleges full payment of the judgment, and is a judicial admission of the fact in this court by the plaintiff, and is sworn to by C. Kohn, representing himself to be an authorized agent of the plaintiff.
We are, therefore, of opinion, that the fact of payment sufficiently appears from the evidence in the record.
The failure of the defendant to give bond for a suspensive appeal, (in the absence of proof or suggestion of his inability to do so,) and his subsequent payment of the judgment, constitute a voluntary execution thereof, and extinguished his right of appeal. C. P. Art. 567.
It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed, and that the Clerk of the District Court enter satisfaction in full on the original judgment in his office ; and that defendant pay the costs of this appeal.
Dissenting Opinion
dissenting. As we have no original jurisdiction, I am of the opinion that the case ought to be remanded to try the issue made by the motion to dismiss.
Where the costs are large, it might be the interest of an appellee to admit payment in order to obtain a dismissal of the appeal.