Burton v. Sheriff of St. Helena

9 La. Ann. 158

• Court: Supreme Court of Louisiana
• Decided: March 15, 1854
• Status: Published

Opinion

Voobhies, J.

The City Bank of New .Orleans having obtained a judgment against the plaintiff, as endorser on a promissory note given by William Shar-bort, issued an execution on it.

The execution was enjoined by the plaintiff, on the ground that the judgment was extinguished, either by payment or novation, under a contract between the makers of the note and Thomas Green Da/oidson.

The latter, at whose instance the execution issued, intervened in the suit, alleging that the consideration of his assumpsit under that contract had failed, and prayed for the dissolution of the injunction.

The injunction having been made perpetual, Ivy F. Thompson, Esq., as attorney for the defendant, moved for and obtained an order for a suspensive appeal, on condition of giving bond and security in the sum of three hundred dollars.

The appellee has moved this court to dismiss the appeal on several grounds, one of which is, “ because the motion for an order of appeal was made on behalf of the defendants, viz., the City Bank and others, and not by the said T. ff. Davidson, who now brings up this record, and the proper parties are not before the court.”

The case comes up on the intervenor’s appeal bond for the sum of one hundred dollars, and it does not appear that any other order of appeal was ever granted.

We are of opinion that the objection is well taken. C. P. 574 Statute of 1843, p. 40.

It is therefore ordered that the appeal be dismissed.