Eschert v. Harrison

On motion to Dismiss. The opinion of the court was delivered by Manning, O. ¿T. The motion to dismiss is based on four grounds; 1.That all parties to the suit are not made parties to the appeal. It is an injunction, and the sheriff is the party who has not been cited. A sheriff who is a party to proceedings by injunction only for the purpose of notifying him that the execution of the writ has been suspended, and who has no interest in the result, need not be made a party to an appeal from the judgment of the lower court. . Boguille v. Faille, 1 Annual, 204. Francis v. Scott, 5 Annual, 668. Boykin v. O’Hara, 6 Annual, 115. 2.That there is no bond of appeal such as is required by law. There is no date to the bond, no sum mentioned in it, and not the proper payee. The day of the month is not inserted, but the month and year are mentioned. The date of filing supplies the omission. The omission of the amount of the bond is not fatal. The bond is read in connection with the order of the court, and the law implies that it was given for the prescribed sum, although no specific sum is mentioned in it. This ruling is now too old to be disturbed. Mason v. Fuller, 12 Annual, 68. Stille v. Beauchamp, 13 Annual, 604. The payee of the bond is the clerk of the 5th Dt. Ct. parish of Orleans. The appellant says the Fifth District Court is meant by these abbreviations, and we regret that we are obliged to tolerate this careless and slip-shod way of preparing legal papers, because in a subsequent part of the bond the [861] names of the suit and court are properly recited, and render certain what court is meant. 3. That the record is incomplete. The certificate accounts for the absence of a particular record by stating that it is lost. The clerk could nowhere find it, and the appellant cannot at this stage of the case suffer because of its loss. 4. That this court is without jurisdiction. The sum claimed in the petition for injunction exceeds five hundred dollars. The motion to dismiss is refused.