Klotz v. Macready

35 La. Ann. 596

• Court: Supreme Court of Louisiana
• Decided: May 15, 1883
• Docket: No. 8661
• Status: Published

Opinions

On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

There are four grounds of the motion to dismiss:

J. ' That in the petition of appeal complaint is made of three judgments rendered in the case, while the prayer is for an appeal from u said judgment,” -without specifying which one of the three is meant.

The appellants did not specify which one was meant, because they meant all. The petition of appeal really sets out in substance the three judgments in detail, and their several dates are given. The omission of the letter s is clerical, or at most a grammatical error. Mala grammatlca non vitiat chariam is a very useful maxim.

2. That one of these judgments, appointing the plaintiff liquidator, was not signed by the Judge.

The suit is for the settlement of a partnership. The order appointing Klotz liquidator is interlocutory. That is the first of the three judgments complained of. The other two were rendered afterwards in the course of the proceedings. That judgment evidently was not tiie final one, and did not require the Judge’s signature. Code Prac. Art. 566.

3. That the blank in the appeal bond for its amount was not filled when it was filed, nor until after it had been copied in the transcript.

Tiie bond was annexed to the petition for appeal, ready for the blank to be filled when the Judge should fix the sum. It was filled before the return day, in the presence of the clerk, and with the assent of the surety. It appears in the transcript complete. The blank w'as filled in time. Had it not been filled until after the appeal was lodged here, it might have been too late. Percy vs. Millaudon, 6 La. 586.

4. That the order of sale (one of the judgments appealed from) was made at the instance of Klotz as liquidator, and be lias not been made a party to the appeal in that capacity.

Klotz was cited to answer the petition of appeal, and that petition recited that the defendants were aggrieved by the three judgments rendered in the suit, giving the name and number of it, and particularizing the judgments, The petition and the citation were served together. Tt is impossible to be in doubt as to what he was to answer. His suit is in his individual capacity. The judgment that makes him liquidator is one of those contested.

The motion is refused.