Roca v. Huhner

5 Teiss. 167

• Court: Louisiana Court of Appeal
• Decided: March 9, 1908
• Docket: No. 4404
• Status: Published

Opinions

MOORE, J.

Appellee moves the dismissal of this appeal on the ground that there is no appellant before this Court who discloses any interest in the subject matter of the ocntroversy, for-asmuch as the motion and order of appeal are not made in behalf of the parties to the suit, but are made in behalf of the counsel of one of the parties — the person called in warranty.

The motion and order here in question read:

“On motion of Gustave Lemle and Irving R. Saal, of counsel for F. H. Huerkamp, and on suggesting to the Court that there is error to the prejudice of mover in the judgment rendered herein on the 25th day of November, 1907, and signed on the 3rd day of December, 1907; and that mover desires to appeal therefrom suspensively and devolutively to the Honorable the Court of Appeal for the Parish of Orleans.

“It is ordered by the Court that move# be and he is hereby granted an appeal, suspensive and devolutive, from the judgment rendered herein on the 25th day of November, 1907, and signed on the 3rd day of December, 1907, returnable to the Court of Appeal for the Parish of Orleans on the fourth Monday of December, 1907, upon his furnishing bond with good and solvent surety in the sum of four hundred ($400.00) dollars, conditioned as the law directs.”

The italicized words show clearly enough that ’it was Huer-kamp, thew arrantor, through his counsel, who complained of the judgment and prayed for and was allowed the appeal, and the record shows that it was he who gave the bond.

The rule announced in Alba vs. Provident, etc., Society, 118 -30, to the effect that when fro mthe motion and order of appeal it is clear that it is the litigant, through his counsel, who complains of the judgment and who prays for and is allowed the appeal, such appeal will not be dismissed because of some slight confusion in the pronons used, applies here.

The law' does not provide any special method of conveying notice to a party of the acceptance to become surety on a contract. .If from the circumstances of the case it is shown that the offerer as surety on a building contract has Knowledge brought to him of the acceptance of the contract and of his offer through the actions of the principals on the contract and his own participation as a furnisher of supplies to be used on said contract, °he making no inquiry about the matter nor formally withdrawing his offer, he must be deemed to have waived formal notice, and is estopped from urging the want of it. March 9, 1908. Rehearing refused March 23, 1908.

The motion is denied.