Ward's Heirs v. Bowmar

Martin, J., delivered the opinion of the court. The dismissal of the appeal is prayed for on the ground “ that the citation is not authenticated by the seal of the court.” 2. That there was not sufficient time elapsed between the service of citation and the return day thereof. 3. The appeal was irregular as to Smith, who had no legal right to appeal for his wife; but that she ought to have appealed with the authorization of her husband, the suit being for the tille to real property of the wife. On the first ground the appeal must be dismissed, for this case cannot be distinguished from that of Campbell, Ritchie & Co. vs. Karr, 7 Louisiana Reports, 70. The irregularities ofbringing up the appeal and oiling* the appellee', are none of them waived, byfiling any grounds for the dismissal of tlie appeal. This renders it useless to examine any of the other grounds ; but the counsel for the appellants contends, that all the informalities in t.he citation and the service thereof are waived, by the third ground of dismissal, which he alleges is a plea to the merits. It appears to us that the irregularities of the citation are not thereby waived. It is only a third ground of dismissal entirely independent of the.two others. It is a substantial ground of dismissal, that the appeal has been taken by a person who has no right thereto ; and in order to show this, the appellee may, without submitting the case on its merits, allege that the right of appeal is in another. The appeal must, therefore, be dismissed, with costs.