Barton v. Kavanaugh

12 La. Ann. 332

• Court: Supreme Court of Louisiana
• Decided: April 15, 1857
• Status: Published

Opinions

On the motion to dimiss the appeal :

Lea, J.

The plaintiffs have moved to dismiss the appeal taken in this case, on the grounds:

1st. That they have not been cited to answer the appeal.

2d. That the evidence adduced on the trial was not reduced to writing, and no statement of facts accompanies the record.

3d. That there being no statement of facts, the court cannot, under the circumstances, determine whether the District Judge erred in the instructions and rulings embraced in the bills of exceptions.

The order of appeal was granted upon a petition filed for that purpose which, however, contains no prayer for citation to the appellees. The appellees not having been cited, contend that the omission is fetal, as being, under the circumstances, attributable to the fault of the appellant. It was not indispensiblc that the petition of appeal should contain a prayer for a citation to the appellees. The husband and wife joined in the suit as plaintiffs, uniting in a common demand ; the Clerk could not have been at a loss to know to whom citations should issue. There are undoubtedly cases in which it is the duty of the appellant to designate to the Clerk the names of those who are to be cited, and where this has been omitted through the fault of the appellant, the appeal will, on motion to that effect, properly made after due notice given, be dismissed.

But we think the appellant is not in fault for not designating the appellees, about whom there could be no mistake, in a case where the Clerk has notice that citations are necessary hy the filing of the petition of appeal. See Ludeting v. Frellsen, 4 An. 534; Broussard v. Broussard, 2 An 769.

As respects the other points urged in support of the motion to dismiss, it may be sufficient to remark, that though the case cannot be examined upon its merits, there is nothing to prevent the court from examining and deciding the questions of law presented by the bills of exceptions taken in the course of the trial.

It is ordered that the rule be dismissed.