Gassen v. Lehmann

13 Tiess. 362

Opinions

His Honor, JOHN ST. PAUL,

rendered the opinion and decree of the Court, as follows:

On Motion To Dismiss.

The appellee moves to dismiss on the ground that the appeal bond was not filed until the twelfth day (excluding Sundays) after judgment.

The copy of said bond is sent up with the transcript is so endorsed; but the appellant has furnished us with an affidavit by the clerk of Court who prepared the transcript, showing that said endorsement was a clerical error, and that in point of fact the bond was duly filed on the sixth day after judgment. And this is substantiated by the originál bond which has now been brought up.

Motion denied.

Syllabus. On The Merits. In an action to annul a sale on the ground of simulation the testimony of the vendee alone is not sufficient to overcome the presumption of simulation when the vendor remains in possession, especially when it was in the power of the vendee to summon the vendor as a witness and he fails to do so.