Shay v. Wattigny

On Motion to Dismiss Appeal. MONROE, J. Plaintiff sues for a partition, alleging that he owns an undivided nine-tenths interest in the property sought to be partitioned, and that two minors, who are made defendants, own the balance. He, however, calls into the case two other persons as defendants, and still another, John Shay, Jr., has intervened, claiming an interest in said property. To his intervention plaintiffs excepted, alleging that it discloses no cause of action; that there is misjoinder of parties; and that intervener has no interest “in the present partition suit.” The judge a quo maintained the exception and dismissed the intervention, and intervener moved for, and obtained, an order for an appeal, suspensive and devolutive, on furnishing bond in the sum of $50. The judgment was signed April 11, 1910, and the appeal bond, for $50, was filed on April 22, 1910. Plaintiff moves to dismiss the appeal on the grounds: (1) That the property sought to be partitioned is worth $9,000, and the bond given is insufficient in amount for a suspensive appeal; (2) that the bond was signed too late to sustain a suspensive appeal. 1. There having been no judgment for a • specific amount, the judge a quo was authorized to fix the amount of the appeal bond (C. P. art. 574), and he appears to have done so. His ruling in that respect cannot be reviewed in this form of proceeding. 2. The appeal stays execution if taken within 10 days, “not including Sundays,” and, as between Monday, April 11th, and Friday, April 22d, a Sunday intervened, the bond was filed in time. The motion to dismiss is therefore overruled.