Davies v. Monroe Water Works & Light Co.

107 La. 145

• Court: Supreme Court of Louisiana
• Decided: November 15, 1901
• Docket: No. 14,001
• Status: Published

Opinions

The opinion of the court was delivered hy Breaux, J.

On rehearing by Blanchard, J.

On Motion to Dismiss.

Breaux, J.

Plaintiffs and appellees moved before this court to dismiss the appeal on a number of grounds.

First, because no appeal bond has been ¡filed as required. The two documents purporting to be appeal bonds filed by the defendants, the Monroe Waiter Works and Light Co. et als., are signed by L. D. McLain who is one of the defendants and appellants.

Second, because .the defendants’ and intervenors’ order of appeal is made returnable before the expiration of fifteen days from the date of the judgment, in contravention of Statute 92 of July 10th, 1900, which declares that the judge shall fix the day in the order granting the appeal, which shall not be less than fifteen days nor more than sixty days from the date of the order, except by the consent of the parties.

■ Third, because appellants have not complied with the provisions of Section 4 of Statute 159 of 1898, which requires that one appealing from an order appointing a receiver shall make affidavit to his interest in such appointment.

With reference to the facts bearing on the first ground for dismissal, it does appear that L. D. McLain is a party defendant and a party intervenor. The intervention, as it appears on the face of the judgment appealed against, was dimissed. With reference to the facts bearing on the second ground for dismissal, the orders of appeal were made returnable according to law. And, with reference to the facts upon which the third ground is based, no affidavit was taken by any one applying to this court.

Taking the first ground for decision, the court finds that there are a number of decisions in which it is held that questions relating to the sufficiency of the bond and the competency of the surety on the bond, both as relates to identification and competency, should be decided contradictorily before the court a qua. In view of the fact that questions should be decided in favor of sustaining the appeal where there is the least doubt, the court decides to adhere to the ruling .aS laid down in the following cases: Edwards vs. Edwards, 29 An. 599; Succession of Charmbury, 34, A. 21; Surget vs. Stanton, 10 A. 318; Wood vs. Harrell, 14, A. 61; Vredenburgh vs. Behan, 32 A. 475, and not to consider the construction in Barrow vs. Clack, 45 A. 478, as applying. This disposes of the first ground to dismiss.

As relates to the intervenors, no question for dismissal arises on this point. An appeal.bond was furnished by the.intervenors, not objectionable in any way.

As relates to the second ground of the motion to dismiss, .that 'is, that the return, day should have been fixed by the court, 'under tho Statute of 1898, we can only say that the Statute of 1900 relating-to appeals generally controls in all cases not governed by special rule. A general law does not repeal a special statute, unless its terms are such as to make it appear evident that the intention was to repeal the special statute. Repeal by implication is not presumed.

, As relates to the intervenors, they have furnished an appeal bond to which not the least objection has been urged.

With reference to the next objection made to the appeal in the motion to dismiss, the lack of the affidavit affords good ground for dismissing the appeal, appellees urge. The Statute 159 of 1898 provides that one who, by affidavit, appears to be interested, may appeal by furnishing bond as required. We think persons not parties to the proceedings are referred to and not those who are parties to the suit, whose interests are admitted by all parties to the litigation. The purpose in requiring the affidavit is to compel the appellant to swear that he, though not a party, has interests involved which afford him a right to be heard. The affidavit of one whose interest is admitted would be an entirely useless formality, as it would add nothing to that which has already been ascertained.

Eor these reasons, the motion to dismiss the appeal is denied.