Nugent v. McCaffrey

33 La. Ann. 271

Opinions

On Motion to Dismiss.

The opinion of the Court was delivered by

Spencer, J.

Defendant and appellee moves to dismiss this appeal, on three grounds.

First. Because the bond names no one as payee.

Second. Because the bond is signed Kate A. Nugent instead of Kate Nugent.

Third. The bond does not sufficiently identify the judgment appealed from.

The bond is in the usual form, declaring that appellant and her surety, naming both, “ are held and firmly bound unto-- executors, administrators and assigns, in the sum of $150,” etc.

Then follows the condition of the bond, reciting “that Kate A. Nugent has this day filed motion of appeal from a final judgment, rendered against her in the suit of Kate Nugent vs. John McCaffrey, No. 43,543, in the Fourth District Court for the parish of Orleans,” etc.

'It is manifest that Kate A. Nugent is the Kate Nugent “against ” whom judgment was rendered in the suit No. 43,543. The bond so declares expressly. The judgment appealed from is sufficiently described.

In the absence of any name as payee of the bond, we will supply it, by considering it as payable to the person to whom the law says it shall be made payable, to wit: the Clerk of the Court — just as in the absence of an amount being stated, we will supply it by reference to the order of appeal. See “Gibbs vs. Lum,” 29 A. 526. This ease differs from that of Marks vs. Herman, 21 A. 756, where the bond was payable to the plaintiffs.

The motion to dismiss is overruled.