Pasley v. McConnell

39 La. Ann. 1097

• Court: Supreme Court of Louisiana
• Decided: December 15, 1887
• Docket: No. 9949
• Status: Published

Opinions

On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

This is an appeal taken from a judgment discharging two rules, taken out by John Pasley against Mrs. Ann McConnell.

One rule was for the purpose of setting aside an order of court requiring the sheriff to make a deed to Mrs. McConnell to certain property previously adjudicated to her.

The other rule charged that Mrs. McConnell had disobeyed an injunction issued for the purpose of preventing her taking possession of the property adjudicated to her, as stated. It being a rule for contempt.

An appeal can only be dismissed on account of some irregularity in the proceedings in the lower court or in this court relating to the appeal, or for the want of jurisdiction.

There are numerous grounds for tlie dismissal of this appeal contained in the motion, only two of which relate to irregularities in the proceedings on the question of jurisdiction.

As to the alleged irregularities, they are, in substance:

1. That the appeal bond is not identified with the case in which the judgment was rendered.

2. That the security on the bond of appeal is disqualified by reason of being a security for costs and also security on an injunction in a proceeding relating to or connected with this case.

3. That an order was made in the court below, requiring security for costs to be furnished within a certain delay. That such security was not furnished within the delay stipulated, and by the effect of such default the proceedings or rules abated, and there existed, therefore nothing that could form the subject of an appeal.

We have examined the record carefully with respect to these contentions, and find that they are without force or merit, either in fact or law.

It is also charged by implication that this court is without jurisdiction ratione materm.

It is true that we are without jurisdiction touching the matter of the rule for contempt mentioned, but the other rule has for its object, as stated, to prevent the sheriff making a deed to certain property adjudicated at sheriff’s sale. This property was adjudicated for $9500.

Besides, in the motion for the appeal we find an averment by the appellant that he will be damaged exceeding $2000, if the sheriff’s deed sought to be prevented is executed to the appellee, Mrs. McConnell ; and the same averment is made and supported by oath in the iujunction proceeding found in the record.

We conclude, therefore, that we have jurisdiction.

The motion to dismiss is, for these reasons, refused.