Ogier v. Marchand

22 La. Ann. 133

• Court: Supreme Court of Louisiana
• Decided: March 15, 1870
• Docket: No. 2585
• Status: Published

Opinion

Howe, J.

The plaintiff has moved to dismiss this ajipeal on several, grounds:

First — That the defendant, having previously obtained an appeal herein and filed the required bond, and said appeal never having been: brought up, abandoned it, and he could not afterwards obtain the appeal now before this court.

The record does not seem to sustain the allegations on which this-point is made.

Second — That the appeal bond herein is not made payable to the clerk of tho lower court, according to law.

The bond is made.payable to the judge of the lower court, to tho clerk, and to the appellee, and would seem therefore. to necessarily include a lawful obligee.

Third — Because the defendant, having acquiesced in the judgment by placing the same as a debt duo by the succession on his provisional account and tableau, can not appeal therefrom.

The record does not sustain this averment. Tho judgment is placed on the account in the following terms: “Amount retained to pay the judgment of Mrs. Ogier, in case it goes against the succession,” etc. It is plain that there is no acquiescence in this.

The motion to dismiss being overruled, we proceed to the merits of the appeal, and find that the court a qiia was without jurisdiction, /ratione materiathe amount in dispute being $690 66, with interest from April 1, 1862. The suit was instituted in the district court, and improperly transferred to the parish court.

It is therefore ordered that the judgment appealed from be avoided ■•and reversed, and the cause remanded to the district court, there to be proceeded with according to law; the appellee to pay costs of appeal.