Morgan's L. & T. R. & S. S. Co. v. Stewart

On Motion to Dismiss Appeal. MONROE, J. Plaintiff brought this suit, alleging that Henry I. Stewart, conspiring with one or more of its employSs, had obtained from it $36,783 by means of fraudulent vouchers; that he had left the state permanently, etc.; and praying for an attachment. It then amended its petition, and alleged that it had learned that the person whom it had supposed to be Henry I. Stewart was in fact Rudolph Fink Gamer, one of its employSs, who had drawn the fraudulent vouchers in question, and having forged the names of other employSs, had obtained the money on said vouchers in his character as Henry I. Stewart, and it prayed for an attachment against Gamer. It then filed a supplemental petition, alleging that, whether Stewart and Garner are two persons or one, it is entitled to judgment (with privilege on the property which, by that time, had been attached in both names) “against Rudolph Fink Gamer, alias Henry I. Stewart, if the identity of the two be established * * * and * * * against Henry I. Stewart and Rudolph Fink Garner in solido, if such identity be not established.” Garner, through his attorney, moved to dissolve the attachment, on the ground that the cause of action stated arising ex delicto, no attachment lies, and there was judgment, signed April 5, 1907, sustaining the motion. Plaintiff thereupon appealed, and defendant moves to dismiss the appeal on the grounds: (1) “That the appeal is * * * without bond;” (2) that if it should be held “that' the bond furnished in the above numbered and entitled cause is operative as a bond of appeal from the judgment dissolving the attachment against mover, Rudolph Fink Gamer, then that said paper so furnished is not a good and sufficient bond in law, inasmuch as the same is upon its face altered and mutilated, dates interlined, and names of parties inserted in said bond, written and subsequently stricken out, without any explanation or addendum upon said bond that said interlineations or erasures were made before the signing of said bond with the consent of the surety, or, if made after the signing of said bond, were made with the said surety’s consent and approval, and that said bond is not such a bond as the law requires in order to effect an appeal'from the judgment complained of.” [963] The motion for appeal is as follows: “Morgan’s Louisiana & Texas Railroad & Steamship Co. v. Rudolph Fink Garner, alias Henry I. Stewart. “No. 81,922. Civil District Court, Parish of Orleans. “On motion of • * * counsel for plaintiff herein, and on suggesting to the court that there is error to the prejudice of plaintiff in the judgment herein rendered on the fifth day of April, 1907, dissolving the writ of attachment herein issued against Rudolph Eink Garner on the first amended and supplemental petition, that said judgment is contrary to the law and will cause plaintiff irreparable injury, and that plaintiff desires to appeal suspensively therefrom to the Supreme Court of the state of Louisiana, it is ordered that a suspensive appeal from the said judgment be granted to * * * plaintiff' herein, returnable to the Supreme Court * * * on the third Monday of April, 1907, upon plaintiff’s furnishing bond, with good and solvent security, in the sum of $200, in the form and conditioned as required by law.” The bond, filed upon the following day, is upon the printed form used in such cases, and, so far as it need be quoted, reads: “Know all men by these presents that we, Morgan’s Louisiana & Texas Railroad & Steamship Co., as principal, and Joseph P. Blair, as surety, are held. * * * “Whereas, the above bounden Morgan’s Louisiana & Texas Railroad & Steamship Company have on (this day) the fifth day of April filed its motion of appeal from a (final) judgment rendered against it, the Morgan’s Louisiana & Texas Railroad & Steamship Company, in the suit of the Moi'gan’s Louisiana & Texas Railroad & Steamship Co. versus (Rudolph Eink Garner, alias) Henry I. Stewart, No. 81,922 of the Civil District Court, * * * on the fifth day of April 1907, and signed on the - day of -, 190— “Now the condition of the above obligation is such that the above bound Morgan’s Louisiana & Texas Railroad & Steamship Company shall prosecute its suspensive appeal; * * * otherwise, the said Joseph P. Blair shall be liable in its place.” “[Signed] Morgan’s La. & Tex. R. R. & S. S. Co., “By M. B. Bergeron, Sec. & Treas. “Joseph P. Blair.” The printed words “this day” have a line drawn through them, and the words “the fifth day of April” are interlined, the word “final” is erased (from the printed form),, and the name and word “Rudolph Eink Garner, alias,” originally written in the bond, are erased. After the filing of the supplemental petition, in which plaintiff alleges that it has-, reason to believe that Stewart and Garner are one and the same person, the papers-filed in the ease are given different captions, in some of which the name of Stewart alone-appears, in others the name of Garner, and. in still others the name of Garner, with that of Stewart added as an alias. They, however, all bear the same number, and otherwise (from their contents) show that they were filed in the same suit, with which suit the bond is similarly identified; and this-identification, and the identification of the-bond and motion of appeal with the judgment appealed from, being .otherwise perfect, theinterlineations complained of are immaterial, and could not affect the liability of the surety, the more particularly as he appears te be one of the counsel by whom the appeal was-lodged in this court. People’s Brewing Co. v. Boebinger, 40 La. Ann. 277, 4 South. 82;. Pasley v. McConnell, 40 La. Ann. 609, 4 South, 501; Baldwin v. Mumford, 35 La. Ann. 348. The motion to dismiss is therefore overruled.