Palmetto Moss Factory v. Texas & P. Ry. Co.

On Motions to Dismiss Appeals. O’NIELL, J. These two suits were filed separately, but, as the cause of action in each case arose from the same occurrence, and as the testimony was applicable to both suits, they were consolidated for the purpose of the trial. The demands are for damages alleged to have been sustained by the destruction by fire of a building owned by the plaintiff Charles Meyer, and of the contents, consisting of machinery and stock owned by the plaintiff Palmetto Moss Factory. The plaintiffs allege that the fire was caused by sparks from the locomotive of the defendant railway company. In the first suit the Palmetto Moss Factory claimed compensation for an alleged loss of $2,791.75, of which the German Fire Insurance Company paid $719.51, was subrogated pro tanto to the claim against the railway company, and is a plaintiff in this suit. The [557] prayer of the petition was that the plaintiffs have judgment for the sum of $2,791.75. In the other suit Charles Meyer claimed compensation for an alleged loss of $3,164.06, of which the German Fire Insurance Company paid $1,000, was subrogated pro tanto to the claim against the railway company, and is a plaintiff in the suit. The prayer of the petition was that the plaintiffs have judgment against the defendant for $3,164.06. The plaintiffs in the one suit, therefore, are the Palmetto Moss Factory and the German Fire Insurance Company, and the plaintiffs in the other suit are Charles Meyer and the German Fire Insurance Company. The petitioners did not in either suit pray that a separate judgment be rendered in favor of each plaintiff. The eases having been tried together, a separate judgment was rendered in each case. In the case of the Palmetto Moss Factory and the German Fire Insurance Company one item of loss was reduced $150 by the court, and judgment for the balance of $2,641.75 was rendered and apportioned thus: It was ordered, adjudged, and decreed that the Palmetto Moss Factory recover of and from the defendant railway company $1,-922.24, with legal interest from the date of the judgment; and it was further ordered, adjudged, and decreed that the German Fire Insurance Company recover of and from the defendant railway company $719.51, with legal interest fgom the date of the judgment. The defendant was condemned to pay all costs. In the case of Charles Meyer and the German Fire Insurance Company judgment was rendered for the full sum claimed, apportioned thus: It was ordered, adjudged, and decreed that Charles Meyer recover of and from the defendant railway $2,164.06, with legal interest from the date of the judgment; and it was further ordered, adjudged, and decreed that the German Fire Insurance Company recover of and from the defendant railway company $1,000, with legal interest from the date of the judgment. The defendant was condemned to pay all costs. The defendant railway company moved for and obtained a separate order of appeal in each case, and furnished only one appeal bond in each case for an amount exceeding by one-half the sum allowed both plaintiffs; that is, one bond for one-half over and above the total sum allowed the Palmetto Moss Factory and the German Fire Insurance Company in one case, and another bond for one-half over and above the total sum allowed Charles Meyer and the German Fire Insurance Company in the other case. Each of the three appellees has filed a separate motion to dismiss the appeals, on the ground that two separate appeal bonds should have been filed in each case. They rely upon the ruling in the Successions of P. C. Clairteaux and U. Clairteaux, 35 La. Ann. 1178, as a precedent for a dismissal of the appeals in this case. In the case cited each succession was represented by a different administratrix; and it appears that Ferdinand Samuel filed an opposition to the account of one, and Jules Samuel filed an opposition to the account of the other administratrix. The oppositions were not tried together, but were consolidated after the judgments were rendered. A separate judgment was rendered dismissing the opposition in each case. The opponents obtained two separate orders of appeal, but filed only one appeal bond; and, on motion of the appellees, the appeals were dismissed. [1] In the case before . us, although the amount which the defendant was condemned to pay was apportioned between the two plaintiffs in whose favor the judgment was rendered, only one judgment was rendered in each case. Hence it was not necessary that the defendant, as appellant, should have obtained two orders of appeal or furnished two appeal bonds in each case. The decision [559] in the case of La Groue and Wife v. City' of New Orleans, 114 La. 254, 38 South. 160, and the cases there cited, are precedents for this ruling. The motions to dismiss the appeals are overruled.