White v. Gaines

27 La. 75

Opinions

Morgan, J.

From a judgment rendered against her the defendant took a suspensive appeal returnable to this court ou the first Monday of November, 1872.

The sufficiency of the security on the appeal bond was tested, and the district judge decided in favor of the bond.

The transcript of appeal was filed here. To the appeal the plaintiff answered, claiming an amendment of the judgment in her favor.

Subsequently plaintiff moved the district judge to order the defendant to furnish additional security, alleging that the surety on the bond first given had become insolvent. The motion was granted, and the delay in which the additional security was to be given was fixed at ten days. After the ten days had elapsed, defendant, under an application to us for a writ of prohibition, sought to have the judgment of the district court, which decided adversely to the solvency of her surety, corrected. This we declined.

The additional bond ordered by the judge was furnished.

On the sixth November, 1874, motion was filed to dismiss the appeal.

On the eleventh November, plaintiff filed a supplemental and amended answer to the appeal.

In our opinion the answer to an appeal which asks to have the judgment amended, filed after the motion to dismiss, without reservation of the same, waives the application to dismiss. Hoffman v. Atkins, 11 An. 172; 13 An. 433.