Baker v. Frellsen

On Motion to Dismiss. Bermudez, C. J. The plaintiff, Baker, having, in aid of a suit previously instituted, obtained an injunction to arrest a suit against him, furnished the bond required, with John T. Ludeling as surety therein. Parties plaintiff and defendant being desirous of having the suit determined, agreed that it could be heard and decided, at chambers, after the adjournment of the court and term time. The document signed to that effect was noted on the minutes. It was not signed by the surety on the bond for the injunction. In furtherance of the agreement, the case was taken up, decided, and the judgment was signed by a judge ad hoc at chambers, without any knowledge or participation on the part of the surety. The judgment was, that the injunction be dissolved without damages. From this judgment an appeal was taken by petition, and citation was served on the surety on the injunction bond. He now moves this Court to dismiss the appeal, because he was no party to the consent that the [825] ¡ease be tried at chambers, and is not bound by the judgment so rendered. 0£ whatever relief the irregularities charged may be to the surety, they cannot be inquired into on a motion to dismiss, as they necessitate ■an investigation into the facts of the case as presented by the appeal. Tlie validity of those objections will be tested and passed upon when the merits of the case will be considered and determined. Motion overruled.