Simmons v. His Creditors

Voorhies, J. William Florence, classed on the tableau of distribution as a privileged creditor of the insolvent, claims the dismissal of the appeal, on the ground that no bond has been given either in his favor or that of the creditors and appellees. The appellants’ bond is in favor of the syndic alone. We think this case falls within the rule announced in the case of Armstrong v. His Creditors, 8 An. 368. See the authorities there quoted. But it has been urged by the appellant’s counsel, that the motion for the dismissal was too late, on the authority of the case of Creevy v. Breedlove, 12 An. The decision in that case was based on the rule announced in the case of John Temple v. Marshall & James, 11 An. 613, (see authorities there quoted,) to the effect that the appeal would not he dismissed for irregularities in the transcript, such as the want of an order of appeal, &c., unless such motion were made within three days after the record was filed. But in the present case, the motion rests on entirely different grounds, namely, that William Florence, who has an interest in maintaining the judgment, has not been made a party to the appeal. In the case of Widow Robert, Executrix, v. Ride & Mairot, 11 An. 409, we said: “It is needless to inquire whether the motion to dismiss in this case should have been filed within three days after the transcript was brought up from the inferior court, inasmuch as the practice of this court has been to notice, ex officio, and without any motion to dismiss having been made, the want of proper parties for a final decree.” See cases there quoted. Appeal dismissed.