Battalora v. Erath

25 La. Ann. 318

• Court: Supreme Court of Louisiana
• Decided: April 15, 1873
• Docket: No. 2863
• Status: Published

Opinions

Ludeling-, C. J.

We are asked to dismiss this appeal on the ground) that all the parties in interest are not made- parties to the appeal.

The appeal is taken by the plaintiff from a judgment dissolving an injunction, without damages. In his petition of appeal he prayed for-citation against the defendants only. It is contended that the surety on the bond should have been made a party to the appeal. We can not imagine why ? For if cited there could be no change made in the ■ judgment, as between the appellees.

In the case of B. Avegno v. S. Johnson, G. Metz subrogated, 22 An.,, it was said that it is “the settled jurisprudence of this court that the surety on an injunction bond is a necessary party to an appeal.” The principle was, too, broadly stated that the surety was a necessary party in that case, which was an appeal from a judgment in favor of the plaintiff perpetuating an injunction. He had an interest in maintaining that judgment. But it is different in a case where the judgment dissolves the injunction without damages, and the plaintiff alone appeals.

The additional grounds filed on fifteenth November, 1870, came too - late, and can not be considered. 12 An. 745.

It is therefore ordered that the motion be overruled.