On the Motion to Dismiss.
The opinion of the Court was delivered by
Levy, J.
Appellee moves to dismiss this appeal, as to the appellant, J. M. Oientat, on the ground that he has acquiesced in the judgment appealed from and applied for his suspensive appeal after legal delays had elapsed. He also filed a supplemental motion to dismiss on the following grounds: 1st. That the certificate of the clerk of the lower court is incorrect and untrue, in that the testimony of certain witnesses was [413]*413heard by the court a qua on the trial of this ease, although the same was not taken down in writing, and that no mention is made thereof either in the body of said transcript or in said certificate. 2d. That the record of appeal is incomplete, inasmuch as it contains no minute entry of the trial of the case below, and no note of evidence taken on the trial, either of the case or of the rule for a new trial, nor does it contain certain receipts which were offered by mover on the trial of the case on its merits. 3d. That evidence was actually offered bn the trial of the rule for new trial and acted upon by the court, which is not contained in the transcript. 4th. That appellant failed to prosecute his application for a new trial in the court below, and cannot in this Court be relieved from the consequences of his own laches. 5th. That appellant’s case is not one which would justify this Court in interfering with or controlling the discretionary power or right of the lower court in matters of new trial. 6th. That Yerges, one of the appellants, had first applied for and obtained an order for a suspensive appeal, which he did take up but failed to prosecute, and he is therebv debarred from the right of applying for and prosecuting a devolutive appeal.
As to the first ground, that of acquiescence, the record shows that the payment of the amount for which a fieri facias had been issued and his property seized thereunder and about to be sold, by the appellant Cientat, was not such voluntary execution of the judgment as would constitute acquiescence therein. He paid the amount under the advice of counsel, on the very eve of the sale of his property by the sheriff, with a protest, and with the declaration, acknowledged in the sheriff’s receipt, ■that it “ was made under compulsion of an impending sale” of his property, to satisfy theyi. fa. issued under the judgment herein appealed, which sale was about to take place. Said receipt also contains the statement by the sheriff, to whom the payment was made, that, Oientat “ protests against the payment, and makes it only to avoid the sale and sacrifice of the property seized and advertised as aforesaid,” and specially " insists that the execution under which said payment is made is wrongful and illegal by reason of his having taken a suspensive appeal from the judgment in this case,which is not yet determined in the Supreme Court,” and that “ he insists upon his right of appeal aforesaid, and in no sense acquiesces in or voluntarily executes said judgment.” The case of Johnson vs. Clark & Meader, 29 An. 762, in which the facts are quite similar to those in this case, and where a motion to dismiss the appeal was made, the Court passed on the very question raised herein, and the reasons there given seem to us to be decisive, and the doctrine then held must be applied to thisgcase. The Court said: “ The defendants did not voluntarily execute the judgment of the lower court. They disregarded the sheriff’s first notice, requiring the payment of the fieri fa[414]*414cias, whereupon, he informed them that, if payment was not made by a given hour, he should seize, advertise for sale, and sell their stock in trade, and to that end, the officer proceeded to prepare, in form, his notices of seizure. To avert this, the defendants paid, and took immediate legal proceedings to stay the fund in the sheriff’s hands. The consequences of a seizure of their stock and its advertisement for sale would have been far-reaching and most injurious to them. Their payment, to avert such consequences, cannot be held in any other light than compulsory. The act should be unequivocal to authorize a presumption of the abandonment of so important a right. Leggett vs. Peet, 1 La. 296; Yale vs. Howard, 24 An. 458.” The ground that Cientat applied for his suspensive appeal after legal delays had elapsed cannot prevail in this case. Although for the purposes of rendering him liable on the injunction bond, as surety, he was constructively before the court, yet this constructive appearance should not operate to debar him of his right of appeal and take him out of the rule established by the Code of Practice. Arts. 575 and 624. The defendant thus constructively before the court as surety, not having answered, having made no actual appearance in the case, was entitled to notification of the judgment rendered against him. No such notice appears to have been given, and we think his appeal was taken in time. As to the validity of the judgment against the surety, we are not called upon to decide in this motion, nor shall we enter into a discussion as to the surety being even constructively before the court in a case where the injunction does not enjoin a monied judgment.
As to Cientat, he cannot be held responsible for the deficiencies of the transcript, when the minutes of the lower court failed to show that certain testimony was taken and certain documents filed by the plaintiff. He took the case as the record of the court showed it, and the failure of the plaintiff to file the documents and of the court and the parties to the suit to have the testimony taken down in writing, should not be visited upon him or imputed to him as a fault, and that, especially, when the case was tried in his absence, and virtually ex parte as to him. The motion to dismiss cannot, therefore, be sustained as to Cientat.
As to Verges : The failure to perfect his suspensive appeal and its abandonment by not giving bond within the delay fixed by law, did not prevent him from availing himself of the right to a devolutive appeal, which he has taken. In the case above cited, 29 An. 762, (Johnson vs. Clark & Meader), it was held : “ The appellee has a right to demand the dismissal of the appeal if the appellant has neglected to give a sufficient bond, or omitted any other legal formality; but a judgment of dismissal pronounced on such demand does not preclude the appellant from having the judgment of the lower court reviewed, if he claims his second [415]*415appeal within the year. The present appeal is within time.” 11 La. 380; 15 An. 116; 27 An. 244. But Verges is met with a serious obstacle in the way of his prosecution of this appeal. It does not appear from the record that any request was made to have the testimony on trial reduced to writing, or that any bill of exceptions was taken or any statement of facts asked for, while the assignment of errors is clearly insufficient and does not show such error in law, patent on the face of the record, as would justify us in maintaining the appeal. In Fonda vs. Denton, 13 An. 343, this Court held that: “ the failure to appear and prosecute the opposition cannot deprive the party interested of the benefit of the judgmont.” The failure of the appellant Verges', a party to all the proceedings, to ask for and obtain a statement of facts, was surely a fault imputable to himself.
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On the Motion to Dismiss.
The opinion of the Court was delivered by
Levy, J.
Appellee moves to dismiss this appeal, as to the appellant, J. M. Oientat, on the ground that he has acquiesced in the judgment appealed from and applied for his suspensive appeal after legal delays had elapsed. He also filed a supplemental motion to dismiss on the following grounds: 1st. That the certificate of the clerk of the lower court is incorrect and untrue, in that the testimony of certain witnesses was [413]*413heard by the court a qua on the trial of this ease, although the same was not taken down in writing, and that no mention is made thereof either in the body of said transcript or in said certificate. 2d. That the record of appeal is incomplete, inasmuch as it contains no minute entry of the trial of the case below, and no note of evidence taken on the trial, either of the case or of the rule for a new trial, nor does it contain certain receipts which were offered by mover on the trial of the case on its merits. 3d. That evidence was actually offered bn the trial of the rule for new trial and acted upon by the court, which is not contained in the transcript. 4th. That appellant failed to prosecute his application for a new trial in the court below, and cannot in this Court be relieved from the consequences of his own laches. 5th. That appellant’s case is not one which would justify this Court in interfering with or controlling the discretionary power or right of the lower court in matters of new trial. 6th. That Yerges, one of the appellants, had first applied for and obtained an order for a suspensive appeal, which he did take up but failed to prosecute, and he is therebv debarred from the right of applying for and prosecuting a devolutive appeal.
As to the first ground, that of acquiescence, the record shows that the payment of the amount for which a fieri facias had been issued and his property seized thereunder and about to be sold, by the appellant Cientat, was not such voluntary execution of the judgment as would constitute acquiescence therein. He paid the amount under the advice of counsel, on the very eve of the sale of his property by the sheriff, with a protest, and with the declaration, acknowledged in the sheriff’s receipt, ■that it “ was made under compulsion of an impending sale” of his property, to satisfy theyi. fa. issued under the judgment herein appealed, which sale was about to take place. Said receipt also contains the statement by the sheriff, to whom the payment was made, that, Oientat “ protests against the payment, and makes it only to avoid the sale and sacrifice of the property seized and advertised as aforesaid,” and specially " insists that the execution under which said payment is made is wrongful and illegal by reason of his having taken a suspensive appeal from the judgment in this case,which is not yet determined in the Supreme Court,” and that “ he insists upon his right of appeal aforesaid, and in no sense acquiesces in or voluntarily executes said judgment.” The case of Johnson vs. Clark & Meader, 29 An. 762, in which the facts are quite similar to those in this case, and where a motion to dismiss the appeal was made, the Court passed on the very question raised herein, and the reasons there given seem to us to be decisive, and the doctrine then held must be applied to thisgcase. The Court said: “ The defendants did not voluntarily execute the judgment of the lower court. They disregarded the sheriff’s first notice, requiring the payment of the fieri fa[414]*414cias, whereupon, he informed them that, if payment was not made by a given hour, he should seize, advertise for sale, and sell their stock in trade, and to that end, the officer proceeded to prepare, in form, his notices of seizure. To avert this, the defendants paid, and took immediate legal proceedings to stay the fund in the sheriff’s hands. The consequences of a seizure of their stock and its advertisement for sale would have been far-reaching and most injurious to them. Their payment, to avert such consequences, cannot be held in any other light than compulsory. The act should be unequivocal to authorize a presumption of the abandonment of so important a right. Leggett vs. Peet, 1 La. 296; Yale vs. Howard, 24 An. 458.” The ground that Cientat applied for his suspensive appeal after legal delays had elapsed cannot prevail in this case. Although for the purposes of rendering him liable on the injunction bond, as surety, he was constructively before the court, yet this constructive appearance should not operate to debar him of his right of appeal and take him out of the rule established by the Code of Practice. Arts. 575 and 624. The defendant thus constructively before the court as surety, not having answered, having made no actual appearance in the case, was entitled to notification of the judgment rendered against him. No such notice appears to have been given, and we think his appeal was taken in time. As to the validity of the judgment against the surety, we are not called upon to decide in this motion, nor shall we enter into a discussion as to the surety being even constructively before the court in a case where the injunction does not enjoin a monied judgment.
As to Cientat, he cannot be held responsible for the deficiencies of the transcript, when the minutes of the lower court failed to show that certain testimony was taken and certain documents filed by the plaintiff. He took the case as the record of the court showed it, and the failure of the plaintiff to file the documents and of the court and the parties to the suit to have the testimony taken down in writing, should not be visited upon him or imputed to him as a fault, and that, especially, when the case was tried in his absence, and virtually ex parte as to him. The motion to dismiss cannot, therefore, be sustained as to Cientat.
As to Verges : The failure to perfect his suspensive appeal and its abandonment by not giving bond within the delay fixed by law, did not prevent him from availing himself of the right to a devolutive appeal, which he has taken. In the case above cited, 29 An. 762, (Johnson vs. Clark & Meader), it was held : “ The appellee has a right to demand the dismissal of the appeal if the appellant has neglected to give a sufficient bond, or omitted any other legal formality; but a judgment of dismissal pronounced on such demand does not preclude the appellant from having the judgment of the lower court reviewed, if he claims his second [415]*415appeal within the year. The present appeal is within time.” 11 La. 380; 15 An. 116; 27 An. 244. But Verges is met with a serious obstacle in the way of his prosecution of this appeal. It does not appear from the record that any request was made to have the testimony on trial reduced to writing, or that any bill of exceptions was taken or any statement of facts asked for, while the assignment of errors is clearly insufficient and does not show such error in law, patent on the face of the record, as would justify us in maintaining the appeal. In Fonda vs. Denton, 13 An. 343, this Court held that: “ the failure to appear and prosecute the opposition cannot deprive the party interested of the benefit of the judgmont.” The failure of the appellant Verges', a party to all the proceedings, to ask for and obtain a statement of facts, was surely a fault imputable to himself.
We find no evidence in the record, but the judgment itsplf states that “ considering the law and evidence are against plaintiff and in favor .of defendants, etc.,” and in such case we will presume that the j udgment was properly rendered, and upon evidence properly before the Court.
In this ease there was a reconventional demand, and, therefore, the judgment was not to be confined to one of nonsiiit. (Hen. Dig., Judgment, viii, No. 18).
The case of Moch vs. Garthwaite, 11 An. 287, is decisive of this point, where the Court held: “Where a plaintiff is seeking to recover from a defendant a sum of money, or to enforce from him the recognition of some right, or the performance of some obligation, a trial had in his absence will entitle the defendant merely to a judgment of nonsuit as against the plaintiff; but this rule is strictly applicable to cases where the position of the party sued is purely defensive, and cannot be extended to cases where the defendant is himself obstructed in the recognition or enforcement of his own rights or counter-claims against the plaintiff. Thus a plaintiff cannot by discontinuing or submitting to a nonsuit, prevent a defendant from trying his claim in reconvention.” And, again: “ We think that where in an injunction suit the issues have been once properly presented to the court upon pleadings involving issues upon the merits, that the judgment dissolving the injunction, unless appealed from, will be conclusive between the same parties, where the same grounds are again set up to enjoin a second seizure for the same'debt or of the same property.” This doctrine is fortified by the following eases: 5 An. 298; 21 An. 814.
It is, therefore, ordered that the motion to dismiss the appeal of Jean M. Cientat be denied at costs of appellee, and the appeal of Pierre Verges be dismissed at his (Verges’) costs.
Rehearing refused.