Gilmore v. Brenham

The judgment of the court was pronounced by Slidell, J. In this case the appellees move to dismiss the appeal of John II. James, on the ground that a previous appeal was taken in the same case, which the appellant is to be considered as having abandoned by not filing in due season the transcript of appeal, and thereby having precluded himself from a second appeal, pursuant to articles 589 and 594 of the Code of Practice. For a proper understanding of the case it is necessary to set forth in detail the nature of the proceedings had in relation to this, and ten other causes, in which James, the appellant, was interested; which facts we have ascertained by a careful examination of the records in this and the other cases, and of the original records and minutes of the Commercial Court, which, in consequence of the confusion which has arisen in this matter, and also of an application by the appellees for a. certiorari, we have caused to be brought before us in the originals. It appears that eleven suits were instituted in the Commercial Court, about [415] the same time, by various plaintiffs, by the same attorneys against the same defendants, of which cases that now before us is one. In each of these suits John H. James filed a third opposition. In each the third opposition was in the same terms, and to the same effect. To each third opposition an exception was filed in each case. The nature of the exceptions in each case was identical. Thus the same questions of law and fact were, so far as the third oppositions and exceptions were concerned, presented in each cause. Under these circumstances, and manifestly for the pui'pose of saving the loss of time and the expense which would have attended a separate hearing, all the exceptions were heard together. On the minutes of the Commercial Court the titles of all the cases are written down, and included in a bracket, opposite to which is written these words: “ The exception to the third opposition of J. II. James, filed in these cases, came on this day for trial before the court. Mott and Kane, for plaintiffs. L. C., and G. B. Duncan and O. Roselius, for third opponent. After hearing counsel the court took the same under consideration.” It is thus manifest that, for the purpose of this hearing in the court below, the parties had agreed to a joint hearing there, and that the decree in one case should be decisive there of all. When the judge gave his reasons for judgment, ho gave them, and they were filed, in one case only, that of Hefferman; but separate decrees were entered in each, with a reference on each record to the reasons assigned in the one case. The judgments being identical in their terms, and being all against James, he filed in the record of the suit of Hefferman v. Brenham et al., a petition of appeal. The form and manner of this petition were evidently dictated by the belief that, there was an agreement of counsel to argue the exception in this court at one hearing, as had been done in the court below, and that all the cases should share the fate of the case of Hefferman. Accordingly the petitioner puts at the head of his petition, thus filed in Hefferman’s case only, a list of eleven cases, with their titles and numbers, and then sets forth that in each of the above cases, upon third opposition and exception thereto, decrees had been rendered in which there was error to his prejudice: “Wherefore, inasmuch as the said oppositions in each of the said cases, together with each answer and each judgment, are in the same words and figures respectively, and each party to the said several oppositions hath the same interest in the final decision of the same, he prays to be allowed to appeal from the judgments rendered in the said above recited cases, and that the parties plaintiffs in the several above recited cases, but defendants in said third oppositions, be severally cited to appear, and answer this petition and appeal.” Upon this petition, thus filed in the record of Ilefferman’s case alone, was indorsed and signed by the judge the following order: “ An appeal is allowed in this case according to law, returnable in the Supreme Court on the first Monday of March next, on the appellant’s giving bond with good and solvent security, in the sum of $100, in favor of each of the plaintiffs mentioned in the petition of appeal, with condition as the law directs ; and let the appellees named in said petition bo cited to answer the same.” Signed, Jan. 24,1846. An appeal bond was filed in Hefferman’s case only, of the following tenor: “Know all men by these presents that we John H. James and Charles A. Sheafej are held and firmly bound unto Charles Hefferman, Messrs. Gilmore Henderson, LUlard, Mosby & Co., Conrey & Co., Stanton & Co., Miller &¡ Baldwin, Thomas Ronclensliker, D’AquinSf Brothers, Crutehler SfMcRaven, JohnT. Yoe, and William B. Richardson, jointly and severally, and to each of them severally, [416] their and each of their executors, administrators and assigns, in the sum of $100, and to each of them respectively in the sum of $100, for the payment whereof we bind ourselves, our heirs, executors and administrators firmly by these presents. Sealed with our seals, and dated in the city of New Orleans, on the 24th day of January, in the year of our Lord one thousand eight hundred and forty-six. Whereas the above bounden John H. James this day filed a petition of appeal from a final judgment rendered him against on his third oppositions, filed in eleven suits in favor of the aforesaid obligees v. C. J. Brenham & Steamboat Ambassador, and numbered 7484, 7504, 7505, 7506, 7507, 7508, 7509, 7510, 7511, 7512, 7513, on the docket of the Commercial Court of New Orleans, in the State of Louisiana, on the 10th day of January, 1846. Now the condition of the above obligation is such that, the above bound John H. James shall prosecute his appeal, and shall satisfy whatever judgment may be rendered against him, or that the same shall be satisfied by the proceeds of the sale of his estate, real or personal, if he be cast in the appeal; otherwise that the said Charles H. Sheafe, his surety, shall be liable in his place. (Signed) John H. James, [L. S.] by Jas. Janius James. Signed sealed and delivered (Signed) Chas. H. Sheaee, [L. S.] in the presence of (Signed) Chas. F. Hozet. Filed 24th January, 1846. (Signed) Ed. Gardehe, Clk.” In March, 1846, the record of appeal in the case of Hefferman was filed in this court; citations of appeal in the other suits Were also issued by the clerk and served; and sheriffs re turns were made and filed in this court. The case of Hefferman was set for trial in this court, argued by the same counsel for James who argued at a simultaneous hearing the exceptions in the eleven cases in the court below, and a decree of this court was rendered in Hefferman’s case. Thereupon the counsel of James, acting, as we are justified in supposing, in good faith, and upon the belief that there was an undei'standing that the decree in one case was to govern all, on the 3d of June, 1846, moved this court and obtained an entry of a like decree in the other ten cases, by order, in the following words: “ Charles Hefferman, Appellee, v. Brenham & James. 6109. J. H. James, third Opponent and Appellant. “ It appearing from the inspection of the record in this case, that the plaintiffs in the following entitled suits, to wit, Gilmore & Henderson v. Brenham et al., No. 7504—Lillard, Mosby & Co. v. Same, No. 7505—Conrey & Co. v. Same, No. 7506—Stanton & Co. v. Same, No. 7507—Miller & Baldwin v. Same, No. 7508—Thos. Londensliker v. Same, No. 7509—D'Aquin & Brothers v. Same, No. 7510—Crutchler & McRaven v. Same, No. 7511—Jno. T. Yoe v. Same, No. 7512, and W. H. Richardson v. Same No. 7513, were made parties to this appeal, and were duly cited to answer the same, and that the facts are precisely the same in each of said cases, the same judgment will be rendered in each of them. It is therefore ordered, adjudged, and decreed, that in each of said causes the judgment of the Commercial Court be avoided and reversed, and that this cause be remanded for further proceedings, the appellee paying the costs of this appeal.” [417] These ten decrees, on a subsequent application of the opposite counsel, the court ordered to be rescinded, by an order in the following words: “ Charles Hefferman, Appellee, v. Brenham & James. 6109. J. H. James, Third Opponent. “ In this cause the plaintiffs in the following entitled suits, to wit, Gilmore & Henderson v. Brenham et al.—Lillard, Mosby & Co. v. Same—Conrey & Co.v. Same—Stanton & Co. v. Same—Miller & Baldwin v. Same—Thos. Londen-sliker v. Same—D’Aquin & Bros. v. Same—Crutchler & McRaven v. Same—Jno. T. Yoe v. Same, and W. B. Richardson v. Same, were made parties to this appeal, and decrees were entered by the court in error, supposing that said parties and their counsel had consented that, the claims of said parties should be determined by the judgment of this court on the appeal in this case. It is ordered that the decrees rendered in said cases on the 3d of June inst. be set aside.” The appellees then obtained, as to each of the ten cases, a certificate from the clerk of this court that no record had been filed, which certificates they filed in the respective cases in the court below. Subsequently, in June, 1846, James filed a petition of appeal in this case, of which case the transcript has been filed, and which appeal the appellees now move to dismiss. All this confusion and difficulty, and the serious loss of the time of this court, which belongs to the public and which would be abundantly occupied by the consideration of cases on the merits, would have been avoided, if counsel had entered into a written agreement, instead of relying upon mere verbal understandings, which are generally loose and uncertain, and of which the respective parties may, without a breach of good faith on either side, entertain a different apprehension. As there is no such agreement before us, we must look to the records alone ; and, after a laborious and critical examination of all that appears of record, we have come to the conclusion that the order of appeal of January 24th, 1846, was, in the absence of any agreement of record to explain and control it, by its terms and legal effect an order of appeal in one case, and legally binding the appellees in that one case only. It follows that there is no lawful order of appeal in the case now under consideration, except the order of appeal granted on the 18th June, 1846, by virtue of which order the case is now before us, and that until said order, and the proceedings had under it, the jurisdiction of this court over this cause never attached. In conclusion we take this occasion to remark that, as this court is one of last resort, and affords to litigants, except in a very limited class of cases, the last and only opportunity for relief from the decrees of the courts of inferior jurisdiction, and as the legislature by the act of 1839 has manifested a like liberal policy, we will always expect an appellee who moves for the dismissal of an appeal to bring himself clearly within the legal rules with regard to dismissal, which in cases of doubt we shall deem it our duty to interpret liberally in favor of the appellant. For the reasons above assigned the motion to dismiss the appeal is refused, the appellees to pay the costs of said motion.* Footnotes [*] Similar judgments were rendered at the same time, on applications to dismiss appeals taken by James from judgments rendered in the oases of Richardson, of Crutchler et al., of Miller et al., of Londenslilcer, and of D’Aquin, brothers, against the same defendants.