Davis v. Alexandria & W. Ry. Co.

94 So. 436, 152 La. 898, 1919 La. LEXIS 1502

Opinions

On Motion to Dismiss.

By the WHOLE COURT as then constituted.

PRO YO STY, J.

Three separate suits, filed by three different plaintiffs are included in the record of this case. As these suits grew out of the same railway accident, and involved the same inquiry into the circumstances of the accident! they were consolidated for trial in the lower court. Judgment went against the plaintiffs, and an appeal was moved for and granted in each case. As the cases had been prosecuted in forma pauperis, and the appeals had been granted in the same form, it was not thought necessary to give bonds of appeal, and none were given. Defendant moves to dismiss the appeals, for the reason that in one of the cases, that of Murphy, the affidavit required by law for the prosecution of a suit in forma pauperis was not made, and that therefore the trial court was without authority to allow the case to be tried, or appealed, in ■ that form, so that the appeal stands without a bond and must in consequence be dismissed, and that the appeals in the two other cases must also be dismissed, because the cases were tried with this Murphy Case and the costs of the trial were incurred in the three cases conjointly.

[1] We do not see the necessity of this consequence. These two cases were properly tried and appealed in forma pauperis. Why, then, may not' the appeal in them stand without a bond? and why should their having been consolidated for trial with the Murphy Case make any difference in the premises?

[2] When the motion and the orders were made for the prosecution and the appeal of the Murphy Case in forma pauperis, defendant objected, and reserved a bill of' exception ; but did not mention the ground on which the objection was founded, so as to afford the trial court an opportunity to pass advisedly upon the objection. This form of objection was insufficient. Non constat that the court would not have ruled differently if the objection had been made properly, and that the necessary affidavit would not have been furnished at once if its absence had been mentioned.

The motion to dismiss is denied.