Bowman v. Kaufman

31 La. 193

• Court: Supreme Court of Louisiana
• Decided: March 15, 1879
• Docket: No. 7372
• Status: Published

Opinions

The opinion of the court was delivered by

Spencer, J.

This case was before us last year, see 30 A. 1021.

Mrs. Bowman’s appeal was dismissed on March 6, on motion of defendants and appellees. We maintained the appeal of her surety on the injunction bond.

No application was made for rehearing by Mrs. Bowman, and our decree dismissing her appeal became final six judicial days after its rendition — i. e. on March 13.

On 23d April following, Mrs. Bowman took a second and devolutive appeal, citing all parties as appellees.

On March 6, the date of dismissing Mrs. Bowman’s appeal, the appeal of the surety was decided, reversing in general terms the judgment below,, and perpetuating plaintiffs injunction.

Defendants applied for and were granted a rehearing to correct this manifest error of the decree on the merits, and the court restricted its terms so as to operate only in favor of the surety.

It is now urged by appellees that this second appeal of Mrs. Bowman, on April 23, was premature, because the jurisdiction of this court continued in consequence of appellees’ application for rehearing up to May 6, when the decree on rehearing was rendered.

We think this an error; there was no rehearing asked on the motion to dismiss Mrs. Bowman’s appeal. Mrs. Bowman did not and the appellees who moved for the dismissal could not ask it. The rehearing was asked by appellees as to the judgment in favor of the surety on the merits. After her appeal was dismissed, Mrs. Bowman was in the cause only as appellee, and our decree could not pass upon issues between appellees.

The general terms of our first decree on the merits were the result. of inadvertence, and would, even without the correction made on rehearing, have been necessarily limited to the issues between the sole appellant and the appellees. We could not in the nature of things reverse a judgment as between two appellees.

Mrs. Bowman’s appeal having been dismissed by a decree final on March 13, she had the right to renew it, at any time thereafter, before the year expired.

The fact that a party is one of the appellees in a cause does not prevent his appealing subsequently from the same decree in order to have it corrected as between him and the other appellees. It is the only mode of relief open to him, since he can only file an answer asking amendments as against appellant.

The motion to dismiss is overruled.