Gibson v. Selby

The judgment of the court was pronounced by Kins, J. The appellee has moved to dismiss this appeal on the ground, among others, that all of the parties contradictorily with whom the judgment was rendei'ed have not been made parties to the appeal, and that the appellee himself has not been cited. Gibson, the appellant, enjoined the execution of a fieri facias, and sought in the same action to annul the judgment under which the writ was issued. The injunction was dissolved, and the plaintiff and his surety on the bond were condemned in solido to pay interest and damages on the amount-of the judgment injoined. On a motion made in open court an appeal was granted, which was not prosecuted. The present appeal has been brought up, on an order granted by the judge on an application made by petitiun. Citations were, therefore, necessary. But neither the surety in the injunction bond, against whom judgment was rendered, nor the appellee have been cited: nor has the appellant prayed that they be cited in his petition for an appeal. The settled rule, that [319] all the parties to the judgment appealed from must be made parties to the appeal, is only deviated from in the instances of merely nominal parties, who are without interest. Drew v. Atchison, 3 Rob. 140. 5 Rob. 225. 12 La. 474. 15 La. 362. Hobgood v. Brown, 2 An. Rep. 323. By the act of 1831, (Acts, p. 102,) the surety on an injunction bond is a party plaintiff in the suit, and, on the dissolution of thej injunction,r{a;judgment in solido is to be rendered against him and his principal. He is not a merely nominal party to the judgment in the present instance, but has an interest in having it maintained, so long as he himself is held bound. If we were permitted to consider the appeal and to reverse the-judgment as to the appellant, it would still remain in force and might be executed against the surety. It was indispensable to the consideration of the appeal, that he should£have been brought before this court. The reason assigned for the failure to cite the appellee, i. e. that he was the judge who granted the appeal, is insufficient to excuse the omission. The appellee, in the order which he granted under the mandate of this court, expressly declined waiving any of his personal and private rights as a litigant. The first appeal was taken in April, 1846,-and, as we have said, was not prosecuted. The second was granted in August, 1847. The appellant has thus had two years to bring up his appeal, and has not, in our opinion, used the diligence which entitles hin} to further indulgence. The failure to issue citations, under the prayer of the petition for an appeal, cannot fairly be considered as the result ef negligence on the pari of the clerk. Appeal dismissed.